Rodman v. Rodman

112 Wis. 378 | Wis. | 1901

Winslow, J.

The fact that Robert L. Rodman desired to leave to the plaintiff the largest and best part of bis estate is rendered certain by the fact that he executed (or supposed that he executed) a will to that effect in 1881, when he was in full health and strength, which remained unre-voked, and which failed to be effective by no fault of his. Adams v. Rodman, 102 Wis. 456. That he had sufficient ground for so discriminating in favor of his youngest son appears satisfactorily from the evidence in this case. That son had for twenty-two years operated his father’s farm on shares, returning to his father a good profit, relieving him from care and labor, and ministering to him faithfully in his declining years. It is to be regretted that the wishes of the testator, which were entirely reasonable and which he endeavored to place in legal and binding form, failed to become effective by reason of a failure to properly witness the will, of which he knew nothing. These matters, however, are of little moment in the consideration of the issues of this case. True, the fact that a will was signed by Eodman in which the property which it is claimed he contracted to will to the plaintiff eight years previously was, in form, devised to the plaintiff, is undoubtedly a fact which may be considered upon the question whether any such contract was in fact made. Still it cannot be considered as controlling, or even as very persuasive. It is matter of common knowledge and experience that, while wills are frequently made, contracts to make a will in a certain way are very infrequent, and for very obvious reasons. ÍTor is the question one which we are to consider and determine from the evidence as an original proposition. It has been considered and determined by the trial court, and that decision cannot be set aside unless it be found, against the clear preponderance of the evidence.

The trial court found, after reviewing all the evidence, that no such contract as the plaintiff claims was ever made; and, after due and careful examination of all the evidence, we are unable to say that this conclusion is against the weight of the evidence. It is true that there was considerable evidence,'in the way of conversational admissions by the testator with various persons, which tended more or less strongly to indicate that the testator had some agreement with his son to leave him the home farm and the other lands now claimed; but, on the other hand, it is to be observed that nearly or quite all of such alleged admissions may as logically be referred to the will as to the supposed contract. Again, there are undisputed circumstances which tend to throw doubt on the existence of such a contract. Eor example, the contract is said to have been made in 1873, but no will was executed to carry it out until eight years haá. elapsed, during all of which time, apparently, a will was in existence, unrevoked, entirely at variance with the contract, which gave Winfield only the home farm and a part of the wood lot, but no part of the northwest eighty. Again, the only reason assigned by the testator for the making of the new will in 1881 was the fact that the executor appointed under the former will had died. Again, it appears without dispute that Wimfield owed his father something like $4,000 in 1886, and that a serious difficulty arose between himself and his father out of the collection of some money by Winfield arising from the sale of crops, which difficulty progressed so far that the father announced that Winfield must leave the farm and pay what he owed. -Thereupon Winfield arranged to leave the place, and entered into negotiations for the hiring of another farm. The difficulty was subsequently patched up by the efforts of the two older sons, but the very significant circumstance in connection with the whole affair is that it does not appear that Winfield at this time made any claim that he had any contract rights, but prepared to leave without objection or protest.

Adding to these facts the testimony as to admissions made by Winfield to Dr. Rodman during the progress of the will contest, and the admissions to other parties after the contest was concluded, both of which are referred to in the statement of facts, there seems certainly to be sufficient evidence from which the'trial court was entitled to conclude, as it did, that no contract to will any property to the plaintiff was ever made.

Another question was presented and argued, namely, the question whether specific performance could be enforced in any event, on account of the fact that the plaintiff never was given exclusive possession of the premises under his alleged contract. This court has certainly taken the ground that an oral agreement to devise lands in consideration of services to be performed is not taken out of the statute of frauds by the mere performance of the services, although they be of a personal nature. Ellis v. Cary, 74 Wis. 176; Martin v. Martin's Estate, 108 Wis. 284. "While there are decisions to the contrary in other jurisdictions, they were distinctly disapproved in the Martin Case, and we see no reason now to review the question. In the case of Ellis v. Cary, supra, it is intimated that, if the promisee under such a contract were putin possession by the promisor under the contract, a proper case for specific performance would arise. In the present case, however, Eobert L. Eodman remained in possession of the property until his death, exercising all the rights of ownership. It is true that' plaintiff also lived upon the premises, but such possession as he had was subordinate to his father’s superior possession and was plainly due to the sharing agreement and not to the alleged contract to will.

By the Court.— Judgment affirmed.