Estate of Neitman v. Neitman

Eschweiler, J. The written agreement between the father and son in February, 1900, providing for the. continued possession of the farm then owned by the father and occupied by the son and for its purchase by the son after the death of the survivor of his parents, was valid, definite, [309] and capable of enforcement from and by its own terms, and it is unnecessary, therefore, to consider as affecting it the terms of the will of the same date and its revocation by the subsequent will. Doyle v. Fischer, 183 Wis. 599, 606, 198 N. W. 763. Though the contract declared the value of the farm to be $7,000, yet it also clearly, provided that the cash purchase price to be paid by the said son was in no event to be more than such sum and might be considerably less. Until the death of the survivor of the parents there existed a liability on the part of the son to pay, on demand, certain sums in excess of the agreed annual rental value of the farm, the totals, however, not to exceed $7,000. No demand by the father pursuant to such condition was shown to have been made. Under this land contract the $3,000 credit to the son upon the purchase price was only to be diminished or destroyed upon the desire of the father or the mother, she him surviving, for more money any one year than the $350 so required to be paid. Not only must there have been a desire for more than that fixed annual payment, but such a desire must have been followed by a demand therefor upon the son. In the absence of such demand no obligation arose on the part of the son to make any such payments. The possibility of such desire and such demand ceasing on the father’s death in December, 1925, there could thereafter arise no obligation of the son to pay any part of the $3,000 to any other than himself. This right to have excess payments was purely personal in the father and entirely optional on his part; if he did not choose to exercise it no one else could or can. The son, therefore, having fully performed during the lifetime of the parents all of the conditions and covenants required of him under said contract, was entitled, as against the executor of the estate and the others interested, to have conveyance made to him pursuant to the terms and conditions of the said con [310] tract and therefore subject to the allowance or deduction of the $3,000 from the $7,000. The item of $1,319.46 for taxes paid by the son was also properly allowed as a deduction from the gross price. Though there is no evidence in the record of any express demand made by the father upon the son to advance the tax payments, and no proof offered on the hearing in that regard, yet such payments of the taxes were advances made by the son to take care of the expressed obligation by the father that the latter should advance them. The absolute necessity for their payment'and the failure of the father to pay were the equivalent of a formal demand upon the son to pay them. A further contention is made by appellants that the granting of the relief as prayed for by the petitioner relieves him from his proportionate liability for the expenses of the administration of the estate of the deceased and therefore contrary to what, it is claimed,, was the spirit, if not the letter, of the agreement and the will of 1900. The $3,000 item as it was described both in the contract and in the contemporaneous will of 1900 was of such a nature that it should, if necessary, share proportionately with the other giftsffn order to discharge such obligations or expenses in the estate as are made by law paramount charges and ahead of any gifts. The order, therefore, must be modified by subjecting, if necessary, the allowance of $3,000 to the son Charles H. to his proportionate share of the expenses of the administration. Appellants complain of the allowance by the court below of $53.75 as and for reasonable expenses of Charles H. Neitman in his application to have the executor convey the real estate to him. The record is silent as to any objections to such at the hearing or of exceptions being thereafter filed by any one. No good grounds are now presented why [311] such item was not properly allowed, and even were such objection well founded it was not timely made and must be disregarded. By the Court. — Order modified as indicated in the opinion. Appellants to pay costs.