200 Wis. 360 | Wis. | 1930
The contract under which the Dethgens claim title imposes on them the obligation to pay $7,000. It provides that when the purchase price is “fully paid,” the deceased would convey title to them by warranty deed. The Dethgens never paid $7,000. They are not entitled to have the title vested in them until the balance due on the contract is paid, unless they are excused from making such payment by the provision quoted above. This makes necessary a consideration of the nature and character of this provision of the contract.
By its terms this provision is not to become effective for any purpose until after the death of the testator. Until death occurs it has no effect whatever. It clearly evidences an intent to retain title to- the property and dominion over it with the right to receive the monthly payments during the entire life of the deceased. There is to be no change in the respective rights of the parties until after death occurs. “The writing upon its face presents all the elements of a testamentary instrument; one which declares the present will of the maker as to disposal of property after his death, without attempting to declare or create any rights therein prior to such event.” Templeton v. Butler, 117 Wis. 455, 458, 94 N. W. 306. This writing- is not an agreement to convey property by will at some future date. It is an attempt to make a present testamentary disposition of property which is to become effective only after death.
The gift of the balance due on the contract, being testamentary in character, was subject to revocation and change at the will of the deceased. He made such change by subsequently executing a will giving his property to other persons. Plaintiff is therefore entitled to judgment foreclosing the land contract and divesting the defendants Dethgens of title, unless they pay the balance due on the contract within such time as shall be fixed by the trial coürt, after determining the balance due.
By the Court. — Let judgment be entered accordingly.