65 Neb. 167 | Neb. | 1902
This case comes before us upon a rehearing granted from a former decision of this court published in 63 Nebr., 607. Reference is made to that opinion for a sufficient statement of the facts involved in the litigation. Upon -the reargument considerations and authorities were urged upon us which, on account of the hurried and insufficient manner in which the cause was presented on the former hearing, escaped our attention at that time, and which have convinced us that we fell into grievous error in the disposition which we made of the case. We at that time labored under the impression that, inasmuch as the premises sought to be recovered were admittedly the homestead of the defendant Frederick. Teske, and the agreement in controversy was confessedly not in writing, the plaintiff was precluded from obtaining the relief prayed by section á of chapter 36 of the Compiled Statutes, which enacts that “the homestead of a married person can not be conveyed or incumbered unless the instrument by which it is conveyed or incumbered is executed and acknowledged by both husband and wife.” By section 1 of the act, a homestead is defined as consisting of the dwelling house in which the claimant resides and its appurtenances, and the land on which the same is situated, not exceeding 160 acres, in all to the value of not exceeding $2,000. By the seventeenth section it is Qnacted that Avhen the claimants are married persons, the person from Avhose property the homestead was selected may dispose of it by will, subject to a life estate of the survivor therein. The right, therefore, of Frederick Teske to make a testamentary disposi
It can not, we think, be successfully contended that the agreement which the referee has found to have been made between Carl Teske and his parents was not testamentary in its character, nor can it well be disputed that he has fully performed and offered to perform on his part. The decision of the question does not depend upon the choice of any particular words or the use of any especial form of expression, but “the doctrine of the cases is that whatever the form of the instrument, if it vests no present interest, but only appoints what is to be done after the death of the maker, it is a testamentary instrument.” Turner v. Scott, 51 Pa. St., 126; Reed v. Hazleton, 37 Kan., 321, 15 Pac. Rep., 177; Hazleton v. Reed, 26 Pac. Rep. [Kan.], 450; Sutton v. Hayden, 62 Mo., 101. These cases establish the doctrine that the sole test by which to ascertain Avhether an instrument or agreement purporting to affect the title to land is testamentary, is to inquire whether it undertakes to vest any present interest or title therein. If it does not, but the title is to remain unaffected, until the death of the owner, and an interest is then to accrue to the other party to the agreement, the contract is testamentary, and in ordinary cases revocable.
The only remaining questions are AArhether an oral agreement to make a testamentary disposition of real estate, made in consideration of .services substantially performed, such as were rendered by the appellee Carl Teske, will be enforced by the court, and, if so, what, under circumstances like those in the case at bar, should be the form of the relief granted. The former of these questions seems to have been definitely ansAvered in the affirmative by this court in Kofka v. Rosicky, 41 Nebr., 328. See, also, Sven
It does not seem to be an obstacle to the granting of relief in such cases as this that the testator, if he may properly be so called, who has conveyed aAvay his property in Adolation of his agreement, is still living. Specific performance, strictly so called, can not be decreed because the father is still living, and until his death the right of the son to have the title vested in himself Avill not have accrued. But such a situation has already been considered by the courts, and the difficulty thence arising has been solved to our satisfaction. In Van Dyne v. Vreeland, 11 N. J. Eq., 370, followed and affirmed in Davison v. Davison, 13 N. J. Eq., 246, approved in Gupton v. Gupton, 47 Mo., 37, and in Button v. Hayden, 62 Mo., 101, it was held that in instances of this kind the grantee, with notice and in fraud of the testamentary agreement, will be decreed to hold the title in trust until the happening of the event vesting a present right thereto in the complainant, and will then be required to convey it to the latter. The conclusion thus arrived at is in contravention of the letter both of the statute of frauds and of the statute of wills, and beyond doubt transactions of the kind in question should be closely scrutinized, or else they may open the door to the
It is recommended that the former decision of this court be overruled and set aside; and that the judgment of the district court be so' modified that the appellee, Carl Teske, be decreed to be entitled upon giving a bond such as is tendered in his petition, if one has not already been given, to retain the occupancy of the premises in controversy during the lifetime of his father, Frederick Teske, subject to the terms, conditions and stipulations of the testamentary agreement set forth in the report of the referee in this action; and that until the death of said Frederick Teske the appellant Martha Dittberner be adjudged to hold the legal title to said premises in trust, for the satisfaction of the terms and conditions of said agreement, free from any estate or interest of her husband, the appellant Frederick Dittberner, as tenant by the curtesy or otherwise ;• and that she be perpetually restrained and enjoined from conveying or incumbering the same except as herein directed; and that upon the death of said Frederick Teske, and full compliance with and-performance of said agreement by said Carl Teske, a conveyance of said premises to him'be made by said Martha Dittberner; and that the said decree, when so modified, be affirmed.
By the Court: For the reasons stated in the foregoing opinion it is ordered that the former decision of this court be overruled and set aside; and that the judgment of the district court be so modified that the appellee, Carl Teske, be decreed to be entitled upon giving a bond such as is tendered in his petition, if one has not already been given, to retain the occupancy of the premises in controversy during the lifetime of his father, Frederick Teske, subject to the terms, conditions and stipulations of the testamentary agreement set forth in th§ report of the referee
Judgment accordingly.