Estate of Salzwedel

OweN, J. The rights of the parties depend upon the effect to be accorded the so-called bill of sale executed May 13, 1913. Appellant claims that it is efficient to vest in the estate of Julius (he having predeceased Henrietta) all the right, title, and interest of Henrietta in and to all personal property of which she died seized, including money and choses in action. The”trial court found that the deed and bill of sale executed May 13, 1913, “are writings which very [444] imperfectly attempt to evidence an agreement between Gottlieb, Henrietta,' and Julius Salzwedel, by which the latter agreed in consideration of the present transfer to him of the 120 acres of land, and at the death of his parents all the personal property • then on said farm, to care for his parents and in some measure to provide for them. That this agreement was in the nature of what is commonly called a ‘Bread contract,’ especially in what Julius promised to do by way of care and support of his parents.” The contest in the circuit court seemed to involve the question of whether, by thé bill of sale, it was the intention of Gottlieb and Henrietta to transfer title to money and choses in action as well as other forms of personal property. The court took evidence tending to throw light upon the intention of the parties and found that “it was the intention of Gottlieb Salzwedel, Henrietta Salzwedel, and Julius Salzwedel that the writing, ‘Exhibit Z’ (bill of sale), should cover the personal property on said 120-acre farm at the time of its execution, commonly known as farm property, such as stock, machinery, and farm products which should be in existence at the time of the death of the survivor of them, and all other such farm property thereafter acquired and in existence at the time of the death of the survivor of them; but that it. was not intended that said ‘Exhibit Z’ (bill of sale) should transfer to Julius the title or ownership at any time of. the aforesaid money, certificates of deposit, and other evidences of debt, or any other money that might be owned or belong to Henrietta Salzwedel at the time of her death.” Appellant strenuously contends that this finding is not supported by the evidence. Respondent combats this contention and urges further -that the bill of sale does not pretend to be a transfer in prcesenti, but purports only to vest title in Julius after the death of Gottlieb and Henrietta;-that it is testamentary in character and void because'not executed as a testamentary document. While we may say, in pass [445] ing, that the finding of the trial court with reference to the intention of the parties is well sustained by the evidence, we hold as a matter of law that the bill of sale is inefficient to vest in the estate of Julius any right or title to the property of which Henrietta died seized. It is clear that the bill of sale does not presently convey, or intend to convey, title. It does not convey the property which the parents then owned. Title thereto remains in the parents. It only purports to vest title in Julius upon the death of the parents. Its purpose was therefore purely testamentary, and, not being executed in the manner required for the execution of wills, it must fail as a testamentary document. Schultz v. Becker, 131 Wis. 235, 110 N. W. 214. It is perfectly clear, too, that the transaction did not amount to a gift, because there was no delivery of the property, which is an essential element of a gift either inter vivos or causa mortis. It follows that the claim of the estate of Julius against the estate of Henrietta is entirely baseless and was properly disallowed by the circuit court. So far as the claim of the estate of Henrietta against the estate of Julius is concerned, there is no contention that the memorandum, mentioned in the statement of facts, upon which the claim is founded, does not represent an indebtedness from Julius to Henrietta, but it is claimed that it passed to Julius by virtue of the bill of sale, which, as we have seen, was of no effect. The claim in favor of the estate of Henrietta against the estate of Julius, therefore, was properly allowed. It is suggested in appellant’s brief that even if the bill of sale is void, nevertheless the court found that there was a sufficient consideration therefor,'by virtue of the agreement on the part of Julius to support the parents so long as they lived, to constitute a basis for the claim filed against the estate of Henrietta, under authority of such cases as Ellis v. Cary, 74 Wis. 176, 42 N. W. 252; Martin v. Estate of Martin, 108 Wis. 284, 84 N. W. 439; and Loper v. [446] Estate of Sheldon, 120 Wis. 26, 97 N. W. 524. The principle of those cases is that a person rendering services for another, which would otherwise be gratuitous, may recover therefor on quantum meruit on proof that they were rendered pursuant to an express promise or agreement by the one receiving the services to compensate therefor, even though such promise or agreement was void under the statute of frauds. Those cases do not hold.that the void contract can be resorted to for the purpose of measuring the amount of the recovery, but that it may be invoked for the purpose of rebutting the presumption that the services were gratuitously rendered. The recovery must be on quantum meruit. In this case no claim was presented upon such a theory and no proof was offered concerning the reasonable value of the services rendered, consequently the principle of those cases has no application. By the judgment of the circuit court it was adjudged “that the certificates of deposit for the sum Of $400 and $500, respectively, belong to August Salzwedel, and are hereby ordered to be delivered to him.'” Appellant contends that this was error; that the certificates of deposit belonged to Henrietta at the time of her death and that there had never been any delivery thereof so as to vest August with title thereto prior to the death of Henrietta, and refers to the case of Dupont v. Jonet, 165 Wis. 554, 560, 162 N. W. 664. It must be admitted that there is grave doubt concerning the correctness of this disposition of the certificates of deposit. But that question is not presented by this appeal. The only question presented by the appeal of the administratrix of the estate of Julius is whether the court erred in holding that the estate of Julius had no title to these certificates. The appeal does not present the question of whether the certificates belong to August. The party adversely affected by that decision is the administratrix of the estate of Henrietta, and she has not appealed. The question, therefore, is not before us for review. [447] The view we take of the effect of the bill of sale makes it unnecessary to consider errors assigned upon the admission and rejection of testimony. By the Court. — Judgment affirmed.