Green v. Gunderson

Doerfler, J. It is the earnest contention of appellants’ counsel that the court erred in assigning the property scheduled in the inventory in the matter of the estate of Peder Gunderson, deceased, to Ole Gunderson; that the court erred in its construction of the contract; that the contract, when read .in the light of the surrounding facts and circumstances existing at the time of its execution, is ambiguous; and that the surrounding facts and circumstances, together with the acts of the parties, clearly indicate that the money accumulations of Peder since 1913 constituted his own individual property, which he was authorized to bequeath in accordance with his wishes; and that the' same did not become the prop — 561 — erty of Ole after his father’s death, pursuant to the provisions of the contract. On the other hand, respondent’s counsel insist that the language of the contract is definite and specific, and that the intention of Peder Gunderson to vest in his son Ole not only the forty-acre farm and the personal property contained thereon at the time of the making of the contract, but all personal property of which he might be possessed at the time of his death, is clearly and definitely expressed; and that the contract is therefore not open to construction. '* Contracts of the nature of the one herein involved are quite common, and usually are made where conditions exist similar to those in the instant case. The causes which induced the father to execute this contract are apparent in the recitals contained therein. Both the father and the mother had arrived at the age of about seventy years, and they realized that their period of active service had come to an end, and that in all reasonable probability they would require during the remainder of their lives the devoted care, nursing, and attention of the children who had shared their home and who had lived with them as members of one family. So, as a consideration for. the contract, the son Ole agreed to provide for all the reasonable wants of his parents, to care for them in sickness and in health, and to nurse them and furnish them with medical attendance whenever the occasion so required. It is quite usual in contracts of this kind that, in addition to what has been referred to, provisions are inserted under which the parents shall be paid stipulated sums at certain times. Such a provision insures for the aged people a degree of independence. In the instant case the contract provides for the payment of one half of the net' profits of the operation of the farm and those derived from the.live stock.' If it appears from the contract that it was the intention of the parents when it was made that Ole was to receive not only the land and the personal property in existence when the — 562 — contract was executed, but also all of the personal property of which they should be possessed at the time of their death, then any will thereafter made would become ineffective, for the reason that no property could exist upon which a will would operate. The land was absolutely conveyed by deed. The personal property was transferred by the contract itself. Among other provisions the contract contains the following: “And the said parties of the first part, in consideration of the premises, do hereby ratify and confirm the sale of said real estate and personal estáte so. made this day to the said Ole E. Gunderson No question is raised in this case that Ole did not fully comply with his part of the contract. The mortgage which was given for security became extinguished upon the death of the parents and after full performance on the part oí-Ole. When the contract was made the parents had no other property than that which was transferred thereunder. Looking forward into the future, their material possessions were confined exclusively to one half of the net profits derived from the operation of the farm. With this situation in view the parties to the contract saw fit to include therein a provision which not only covered the real and personal property transferred in 1913, but all personal property owned by the parents or either of them at the time of their death. That paragraph of the contract which is the vital one to be considered in the determination of the issue reads as follows: “On the death of said parties of the first part, all personal property owned by them or either of them 'shall, vest in and become the property of Ole E. Gunderson, one of the parties of the second part.” In view of the situation, the parents could have had in mind no other personal property than the accumulations of money. Sub. (31), sec. 370.01, of the Statutes defines personal property as follows: ‘.‘The words ‘personal property’ include — 563 — money, goods, chattels, things in action and evidences of debt.” In general, by “property” is meant either real property or personal property. A promissory note has been held in Wayland University v. Boorman, 56 Wis. 657, 14 N. W. 819, as personal property. Such is also' the holding in La Crosse Nat. Bank v. Wilson, 74 Wis. 391, 43 N. W. 153, and Storm v. Cotzhausen, 38 Wis, 139. See, also, 22 Ruling Case Law, 63. The contract also contains a provision by which Ole was obligated to pay, within one- year after the death of his father, certain sums of money aggregating over $1,000. While this provision is not by any means conclusive that the father had in mind that he would have no property to dispose of by will, nevertheless it is rather persuasive. But as heretofore stated, we are convinced that the contract in itself is clear and unambiguous and that it bears upon its face the intention of the father to transfer all of his property which he owned or possessed, not only at the time of the making of the contract but also that owned by him at the time of his death. Viewing the contract, however, in the light of the surrounding circumstances and of the evidence contáined in the record, we nevertheless are of the opinion that it was the testator’s intention that at the time of his death his son Ole should be entitled to all of his property. When the father arrived at the age of seventy years, fully realizing his infirmities, he concluded to part with his. possessions under such circumstances as would leave them largely to his favored and faithful son, in whom he placed implicit faith and trust that such son would devote his best efforts to provide for him and his wife everything reasonably necessary for the balance of their years. The father’s active period of life had passed. No one could foretell in 1913 how long the parents would live. Under the very terms of the contract the father was relieved from the performance of manual labor. It is — 564 — quite clear that when the contract was made, neither the father nor the son could foresee the profitable years rvhich followed the great World War. .There is no evidence in the record to indicate'-that the father, at any time prior to 1919, ever contemplated the making of a will. These large accumulations on the part of the father were made possible principally by conditions resulting from the war, which resulted in an unusual and enhanced rise in prices of the products of the farm. In fact, farm products during that period commanded a price unprecedented in the history of the country, and it was only after he received the large'profits resulting from the war that his mind began to dwell upon the disposition of the same by will. It is very seldom indeed that the conditions of a contract for support are -so fully and generously executed as appears in the instant case. The son not only performed his legal-obligations by paying his father one half of the net profits of the forty-acre farm and of the personal property, but in addition thereto he handed him one half of the net profits of his entire land, with the exception of twenty-four acres. If it became necessary to determine the issue herein from the acts of the parties, this generous and whole-souled contribution on the part of the son. for the welfare of his parents would be not only persuasive; but nigh conclusive, that the son expected to receive from his father what accumulations were left at the time of the latter’s death. There is no evidence in the case that the son knew of the provisions of the will prior to the father’s death, and under the circumstances it must be presumed that, notwithstanding the son’s knowledge of the making of a will in 1919, he had no reason to infer otherwise than that the will would be confirmatory of .the provisions of the contract. A will is a sacred document, and under the statutes it is the duty of the executor to present the will for probate. Conceding that the filing of an inventory which scheduled property of the value — 565 — of about $7,000 presents a rather inconsistent attitude on the part of the son while acting as executor, and 'conceding further that statements made by him with respect to the provisions of the will are somewhat irreconcilable with his present position, which is based solely upon the contract, nevertheless, viewing the contract in the light of all the evidence, we are satisfied that the father when he executed the contract clearly intended that the son should receive the property he owned at his death. By the Court. — The judgment of the county court is affirmed.