205 Wis. 590 | Wis. | 1931
William Goltz, an aged bachelor, died on the 2d day of April, 1930. By the terms of his will all of his property, appraised at nearly $10,000, was bequeathed and devised to three nieces and a nephew, Frances Shaffer, Mabel Kurt (appellants), Clara Miller, and August Goltz. The will, however, provided that it was the testator’s desire that the partnership existing between him and his brother Frank Goltz shall continue until the death of his brother Frank Goltz, and the latter’s wife, Anna Goltz. Clara Miller, one of said beneficiaries, is the wife of the claimant.
For a number of years prior to 1919 deceased and his brother Frank Goltz, who was the father of the four beneficiaries hereinbefore mentioned, resided together on a farm owned jointly by them. The family consisted of the deceased, his brother Frank, the latter’s wife Anna, and the three nieces and nephew hereinbefore named. The farm
There is no testimony in the record to the effect that the deceased ever promised to compensate claimant for the services performed; that he.- ever promised to leave his property to him or any part thereof by will or otherwise; or that deceased ever intended to compensate claimant. Such declarations have- been, at times, held to be sufficient in connection with other circumstances to 'prove circumstantially an express contract and thereby satisfy the rules laid ^doWn by this court in numerous decisions.
■A careful, consideration of all the facts and circumstances which the entire record reveals leaves no doubt that this case falls within the rule laid down in the Kessler Case and frequently thereafter approved by .this court.
Since the facts of this case bring it within the rule stated and give rise to the presumption of gratuitous services, it was incumbent upon the claimant to prove an express contract by direct and positive evidence or to prove by unequivocal facts and circumstances that which is the equivalent of direct and positive proof of an express contract. Hall v. Finch, 29 Wis. 278; Tyler v. Burrington, 39 Wis. 376; Pellage v. Pellage, 32 Wis. 136; Leitgabel v. Belt, 108 Wis. 107, 83 N. W. 1111.
That the claimant and deceased lived in the same family and under the same roof and performed services each for the other from 1919 up to the spring of 1926 is conceded. That there is nothing in the record rising to the dignity of proof of an express contract either directly or circumstantially, subsequent to. that time, cannot be gainsaid. It seems clear that when such a relationship once exists between members of a family closely related by blood or mar
It is rather significant that no demand for compensation wás ever made of the deceased in his lifetime although he had income from the farm which was paid to him by the claimant and had other property in the form of moneys in bank and certificátes of deposit. When the fact is considered that the deceased lived with claimant and his wife on this farm for about eleven years prior to his death and that Clara received no more favorable consideration
Claims of this nature should be carefully scrutinized and the evidence offered in support of them carefully weighed. Such claims should not be allowed unless founded on express contract or on positive and direct proof of circumstances amounting to the equivalent of an express contract.
Courts are not permitted to make express contracts for deceased persons when no such contracts have in fact been made by them. Persons related by blood or marriage who reside in a family and perform services for each other should not wait until death has closed the lips of him for whom such services were performed before demanding compensation or bringing home to such person knowledge that such compensation is expected and will be claimed. After death it is obviously too late to make a contract for compensation when none has theretofore in fact been made, and under circumstances where a contract cannot be -implied.
The mere fact that the advanced age of a member of such a family brings to' those performing services for him greater burdens and responsibilities is not sufficient to prove an express contract to compensate. Estate of Skinner, supra. In the absence of an express contract in a situation like this,
By the Court. — For the reasons stated the order of the county court of Dane county allowing the claim of Norbert Miller against the estate of William Goltz, deceased, is reversed, with directions to disallow said claim.