83 Neb. 145 | Neb. | 1909
Matteus Panko, who was a resident of Otoe county, died leaving a last will, by which he gave to his wife, Maria Panko, absolutely, all of his property, both real and per
We have heretofore held that a mutual promise made between heirs to an estate, whereby the objections filed or made to the probate of a will are dismissed in consideration of an agreement by all of the parties concerned in the estate that the property is to be divided among them upon terms other than those provided in the will, will, if made in good faith, be enforced by a decree of court. Grochowski v. Grochowski, 77 Neb. 506, 510. In that case the agreement which it was sought to enforce was evidenced by a writing, and the defense was that such a contract was invalid, as being against public policy, and without consideration. The fact of the contract having been entered into was not questioned. In this case it is conceded that the law of the Grochowski case applies, and it is urged that the evidence is convincing that the contract was entered into, and that the findings and judgment are against the evidence. Before examining the evidence in detail, we deem it advisable to say that as a general rule the court will not enforce the specific performance of a contract of this nature, unless the proof is clear and satisfactory that the alleged contract was actually entered into. More especially is this the case where the contract which is the subject of inquiry has been entered into between an aged mother upon the one hand and her children or some of them upon the other, and where the result of the contract would be to deprive the aged parent of property or rights therein for the benefit of the children. In such a case the transaction will be closely scrutinized and must be clearly proved. No presumptions will be indulged in its favor.
The will was filed for probate on February 6, 1906, and on February 28 the objections were filed. Shortly after this Henry Harms, husband of one of the contestants, and Godfrey Panko met and a settlement was suggested. Another meeting was held at which Harm Harms, another
For the defense Mrs. Panko denies that the agreement was made when all the parties were together. It appears that she does not understand English at all, nor German
Upon the whole case the evidence is not so clear, satisfactory and convincing that it would justify us in virtually setting aside the will of the deceased and depriving the aged widow of about $20,000 worth of property by reversing the judgment of the district court and compelling the performance of a contract such as the one sought to be established in this case.
The judgment of the district court is
Affirmed.