Whitman v. Dittman
| Decision Date | 26 January 1923 |
| Docket Number | 23,043 |
| Citation | 191 N.W. 821,154 Minn. 346 |
| Parties | CARRIE B. WHITMAN v. GEORGE C. DITTMAN AND GEORGIANA DITTMAN, INDIVIDUALLY AND AS EXECUTORS OF THE ESTATE OF JOSEPH W. BETTINGEN, DECEASED |
| Court | Minnesota Supreme Court |
Action in the district court for Ramsey county against defendants as individuals and as executors of the estate of Joseph W Bettingen, deceased. Plaintiff's demurrer to paragraphs numbered 1, 2 and 3 of defendants' answer was overruled by Michael, J. Defendants' motion for judgment in favor of defendants on the pleadings was granted and that defendants George C. Dittman and Georgianna Dittman have judgment confirming their title to the real estate and property. From the judgment entered pursuant to the order for judgment, plaintiff appealed. Affirmed.
Contract to make will not taken out of statute of frauds by part performance.
1. A party may make a valid contract to bequeath property by will. The law of specific performance is applied to such contracts on much the same principle as to other contracts. Such contracts if verbal may be taken out of the statute of frauds by part performance. If the consideration consists of the actual rendition of services of such a nature that the value is incapable of estimate by any mere pecuniary standard, the case is taken out of the statute. The facts of this case do not bring it within that rule.
Payment of money not sufficient to take contract out of statute.
2. The payment of money is not such part performance as will take a contract out of the statute, even though the payment has caused the party making it to sacrifice something in the way of education or medical treatment for himself or his family.
Frankel & Harvey and Charles Burke Elliott, for appellant.
O'Brien Stone, Horn & Stringer and Charles Bechhoefer, for respondents.
This case comes here on an appeal from a judgment given on a motion for judgment on the pleadings. One ground for the granting of the motion was that the complaint fails to state a cause of action. We sustain this ground and it is unnecessary to discuss any others.
The substance of the complaint is as follows:
Joseph W. Bettingen, deceased, was a younger brother of plaintiff, and an uncle of defendants. In 1889 Bettingen had completed a University course in medicine and desired to study abroad. Plaintiff had $5,000 which she intended to use in procuring for herself a musical education so that she could earn a livelihood for herself and an infant son. Her husband had failed in business and she doubted whether he would be able to maintain her in her former scale of living. She gave deceased $4,500 for the purpose mentioned and abandoned her project of becoming self-supporting, in reliance on the promise of deceased to reimburse her in case she survived him, by bequeathing to her all property real or personal, or the proceeds thereof, which he might secure by inheritance or otherwise from the estate of their parents.
After deceased returned from abroad, plaintiff furnished his office and assisted him in building up a practice, rendering service and assistance, the value of which cannot be computed in money, in reliance on his oft-renewed promise to bequeath to her the property which he might inherit or otherwise secure from their parents.
In 1905 deceased became involved in an action with a notorious woman. During this trouble plaintiff assisted, comforted, advised and administered to him, and in divers ways rendered him services, the value of which cannot be computed in money. He became financially involved, and she gave him $5,000 which she had intended to use for the education, and for the medical treatment of her son, who was suffering from curvature of the spine. The loan of this amount prevented her from securing the higher education of her son and from having him treated for his infirmity. This gift was made in reliance on a promise made by deceased that he would never marry, and that if she would give to him that amount and would continue to assist, advise and minister unto him, he would bequeath to her all the property, real or personal, of which he might die seised, save small bequests not to exceed $10,000.
Deceased left a will in which he bequeathed to her only the sum of $5,000, and, after other small bequests, gave the balance of his property, some real, some personal, amounting in all to over $127,000, to the defendants.
1. The question now is whether this verbal contract is enforceable by action. It is well settled that a party may make a valid contract to bequeath property by will. Svanburg v Fosseen, 75 Minn. 350, 78 N.W. 4, 43 L.R.A. 427, 74 Am. St. 490; Laird v. Vila, 93 Minn. 45, 100 N.W. 656, 106 Am. St. 420. The law of specific performance is applied to such contracts on...
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