McCourt v. Peppard

WiNsnow, J. The pivotal question in this case is whether the transaction of June 3, 1898, was contractual or testamentary in its character. If it was contractual — that is, if there was a promise on the part of Catherine to expend certain sums for certain definite purposes after her mother’s death, and in consideration thereof a promise by the intestate to repay to her the sums so expended, the performance of which latter promise was secured by the mortgage in question — no reason is perceived why the contract should not be enforced. There is no element of trust in the legal sense in such a transaction. It is a pure contract. If, on the other hand, the transaction was testamentary — that is, if the written documents, viewed in the light of the attending circumstances, must be construed not as a present contract, but as a direction that Catherine should receive $500 out of her mother’s estate after her death and expend the money so received for the purposes named- — ■ then the papers cannot be enforced as a contract, but must operate as a will if they operate at all. Templeton v. Butler, 117 Wis. 455, 94 N. W. 306. The question is by no means easy of solution. It is true that the note and mortgage are in the usual form, and upon their face are unambiguous and purely contractual in their nature. The note recites a present consideration, and were it not for evidence aliunde there would be no doubt that we are dealing with a simple contract to pay money, secured by a collateral mortgage. But the recitation of consideration is always open to explanation or contradiction, and the evidence properly introduced here on that subject shows without dispute that there was no present or past consideration for the intestate’s promise; but, if there was any consideration, it was a promise to do something in the future. It may be very duobtful whether the paper signed by the intestate after the execution of the note and mortgage, reciting what Catherine was to do, can be considered as forming a part of the transaction so that it can be construed with the other papers. It was [331] never delivered to Catherine and was not signed by ber, .and seems to bave been designed only for tbe purpose of aiding tbe memory of tbe officer in case a question should arise after-Mrs. Peppard’s death as to what Catherine bad promised to do; but we do not regard this question as important. In any event it might be properly used by tbe officer as a memorandum to refresh bis recollection as to tbe consideration. It was so used, and, the officer’s testimony being in accord with the memorandum and entirely undisputed, tbe facts stated in tbe memorandum showing tbe actual consideration are fully es-•-tablisbed, and must be considered in judging of tbe nature of tbe transaction. Tbe mortgage is, of course, but an accessory of tbe note. It conveyed no title to tbe land, nor did it create a lien-thereon unless tbe note was in fact a contract creating an indebtedness. So it is necessary, primarily, to consider tbe legal effect of tbe note. In view of tbe undisputed testimony as to-tbe consideration, tbe note may be read as though tbe actual consideration were inserted in words. So reading it, we find a promise by the maker to pay tbe plaintiff or order, five years-after date, $500, with annual interest at five per cent., in consideration of tbe promise by tbe plaintiff to “distribute,” after tbe maker’s death, $300 to tbe priest of a certain church for masses, $100 to a sister named, and “keep” tbe balance herself. Was this a present contract, a promise in consideration of a promise, or was it a direction that after the maker’s death $500 be paid to tbe plaintiff upon ber agreement to apply the-sum to certain uses ? This is to be determined, not necessarily from tbe language nor from the belief or understanding of the-parties as to tbe legal effect of tbe paper, although all these, should be considered, but tbe circumstances surrounding tbe parties at tbe time of its execution are also to be taken into-consideration, and from all tbe facts the court will determine-whether tbe instrument was intended to bave a post mortem-effect only, and hence is testamentary. 1 Underbill, Wills,. [332] § 37. This principle does not affect the well-understood principle that, if a deed of land in the usual form be delivered with intent to pass the title, the title will pass, notwithstanding the fact that the grantor may have believed that it was revocable at pleasure. Rogers v. Rogers, 53 Wis. 36, 10 N. W. 2. In the present case there are considerations entitled to weight on each side of this question. Upon the contract side there is the fact that the form of the paper is purely contractual and drawn in terms apt and fitting for a present contract; that it is a definite promise to pay a certain sum of money at a fixed time in the future, with no mention of the contingency of death; qnd that the sum bears interest, to be paid annually. These facts are certainly inconsistent with the idea that the instrument was intended to have a post mortem effect only. But, upon the other side, it is pointed out that while the effect of these considerations would be strong if the paper had been dx’awn by an experienced lawyer or executed by a person of experience in the transaction of business, they lose much of their force when it is considered that the persons immediately concerned evidently had little business experience and that the scrivener was not a lawyer, and that the papers had been fully drawn and delivered before he had knowledge of their real purpose. Passing from these merely negative considerations, a number of facts are relied upon as persuasively showing that the paper was intended for testamentary purposes only. The maker was a person at least seventy-two, and perhaps seventy-seven, yeprs of age. She had been in feeble health for years, was evidently contemplating and preparing for death, and could not reasonably expect to survive the term of the note. The payments to be made by Catherine were all to be made after the maker’s death. These payments were all in the nature of direct bequests or bequests in trust, whether valid or invalid. The word used by the donor in dictating the memo333 ranclum with reference to the payments to be made to third persons was the word “distribute,” and the word used with reference to the plaintiffs own share was the word “keep,” both of which words are inconsistent with the idea that the plaintiff was to make payments out of her own funds and reimburse herself by enforcing the note and mortgage, but entirely consistent with the idea that she was first to obtain the money from the donor’s estate. Funds which had not been previously obtained could not be “distributed” or “kept.” The only promise apparently'made by the plaintiff was that she would “do this;” i. e. that she would make this distribution, not that she would make the payments and rely on the note and mortgage for reimbursement. The mortgage was not to be recorded until the plaintiff gave direction, and she did not give that direction until the day of her mother’s death. We have endeavored to give to all the material facts bearing on the question that careful consideration and weight to which they are entitled, and we are convinced -that they point clearly to the conclusion that the intention of both parties was that the note was to have a post mortem effect only, notwithstanding its terms. The whole transaction was simply an arrangement by which it was expected that $500 was secured to be paid to the plaintiff out of the donor’s estate after her death for distribution. / These conclusions render unnecessary the discussion of any other questions raised, and demonstrate that there was no error committed of which the plaintiff can complain. By the Court. — That part of the judgment appealed from is affirmed.