Opinion
No. 130.
Argued November 4, 1971. —
Decided November 30, 1971.
APPEAL from an order of the county court of Milwaukee county: MICHAEL T. SULLIVAN, Judge. Affirmed.
For the appellant there was a brief and oral argument by Roland J. Steinle, Jr., of Milwaukee.
For the respondent there was brief and oral argument by William H. Bowman of Milwaukee.
The order appealed from quashed a petition to enforce a contract allegedly entered into between the heirs of the deceased to compromise a will contest pursuant to sec. 318.31, Stats.
Ruby E. McKillip, a resident of Milwaukee county, died on January 1, 1967. She left two adult children — Mary Street, the contestant-appellant, and Marjorie L. Owens, the proponent-respondent.
Mrs. McKillip had an estate of a value of about $200,000. She left a last will and testament which named Marjorie L. Owens as executrix. The will provided for some specific bequests, including the establishment of $5,000 trusts for Mary Street's three children. The great bulk of the estate, however, was to go to Marjorie L. Owens by virtue of the residuary clause. Mary Street was not named in the will and no provision was made for her.
The will was offered for probate in the county court of Milwaukee county. On October 6, 1967, Mary Street filed objections to the allowance of the will, alleging that the execution of the will had been procured by the undue influence of Marjorie L. Owens.
On November 8, 1967, adverse examinations of both parties were taken before a court commissioner. Right after these examinations both parties and their respective attorneys discussed the possibility of resolving the dispute.
Mr. Gregory Gramling, an attorney representing Mary Street, filed an affidavit in support of her petition, wherein he states that Mary Street and Marjorie L. Owens orally agreed to a compromise settlement in the presence of their respective attorneys.
Mr. Gramling further states that he made a written memorandum of the things Marjorie L. Owens agreed to give to Mary Street and that Mrs. Owens made a duplicate copy which Gramling signed.
The memorandum was as follows:
"$17,500 4 — $100 bonds sapphire dia ring black china red glass ware dad's picture noritake angel bowl keep Mary's children in will as presently." In return, Mary Street agreed to withdraw her objections to the will.A few days after this meeting, Mr. Gramling prepared a document called "Stipulation on Objections to Probate," obtained Mary Street's signature, and submitted the document to Marjorie Owens for her signature. Mrs. Owens declined to sign the document.
The document read as follows:
"WHEREAS, a petition is pending in this court for the admission to probate of the instrument dated September 25, 1958, propounded by Marjorie McKillip Owens as and for the last will and testament of Ruby E. McKillip, late of the county of Milwaukee, state of Wisconsin; and
"WHEREAS, objections in writing to the allowance in probate of such instrument have been filed by Mary McKillip Street, alleging that the execution of such instrument was procured by undue influence exercised over and upon said Ruby E. McKillip, deceased, directly and indirectly, by Marjorie McKillip Owens; and
"WHEREAS, a time for the trial of the issues raised by said objections has been set before this court; and
"WHEREAS, the said Marjorie McKillip Owens and the said Mary McKillip Street are the sole children of the deceased and the only heirs-at-law of such deceased; and
"WHEREAS, the proponent and the objector are desirous of disposing of such legal action and have reconciled their positions on the basis hereinafter set forth, to the end that said objections may be withdrawn and said instrument admitted into probate; and
"WHEREAS, the value of the estate of said deceased, exclusive of debts and claims, exceeds the sum of $100,000.00,
"NOW THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the proponent and the objector, subject to the approval of the court, with the approval of their respective attorneys, as follows:
"1. Certain items of personal property, presently in the possession of Marjorie McKillip Owens, are hereby acknowledged to be the property of Mary McKillip Street and are to be delivered to her forthwith upon the execution hereof, to-wit:
"a — one (1) sapphire diamond ring; "b — one (1) seal woman's coat; "c — certain red glassware; "d — a set of Noritake china; "e — a certain angel bowl "f — four (4) $100 U.S. Savings Bonds, Series E, in the names of the proponent and the objector; "g — several pieces of black chinaware; and "h — a photograph of the father of the parties, in color. It is understood that these items are in the home of the proponent, formerly the home of the deceased and the proponent and the objector.
"2. The objector, Mary McKillip Street, will be paid the sum of Seventeen Thousand Five Hundred and no/100 Dollars ($17,500.00) on or before December 31, 1967, out of the assets of the estate in lieu of any and all claims which she may have in and to the estate of the deceased.
"3. The proponent, Marjorie McKillip Owens, shall, and does hereby agree to, name each of the children of Mary McKillip Street in her last will and testament as the beneficiary of at least the sum of Five Thousand Dollars ($5,000.00) apiece, and further agrees to keep in her own name, sufficient assets to cause such legacies to be paid upon her death. The provisions of this paragraph constitute a legally enforceable contract between the parties for the benefit of the children of Mary McKillip Street, and shall be binding upon the heirs, executors, administrators and assigns of the said Marjorie McKillip Owens.
"4. The objector, Mary McKillip Street, hereby withdraws her objections to the probate of the last will and testament dated September 25, 1958, and propounded by Marjorie McKillip Owens as the last will and testament of the deceased, and agrees that such instrument may be admitted into probate forthwith.
"5. Mary McKillip Street shall not be liable for any estate, gift, inheritance or succession taxes by reason of the payment from the estate of the deceased, as hereinabove provided for, to her.
"6. Each party to this stipulation agrees to pay her own attorney fees, and the estate of the deceased shall not be liable for any claim for attorney fees by any attorneys for Mary McKillip Street.
"Dated at Milwaukee, Wisconsin this _____ day of November, 1967.
"________________________ Approved: Marjorie McKillip Owens Proponent _______________________ Attorney for Proponent "/s/ Mary McKillip Street ------------------------- Mary McKillip Street _______________________ Objector Attorney for Objector" Mary Street withdrew her objections to the will on December 6, 1967, and did not participate in the proof of will proceedings, nor did she offer any proof in opposition to the will.On January 28, 1969, the appellant, Mary Street, petitioned for an order to show cause in the county court of Milwaukee county requiring Marjorie Owens to show cause why she should not be compelled by an order of the county court to conform to the "Stipulation on Objections to Probate" document.
On February 7, 1969, Marjorie Owens moved to quash and dismiss the petition.
On February 2, 1970, the county court of Milwaukee county granted Marjorie Owen's motions to quash the petition.
Mary Street appeals.
The issues may be stated in one question:
Did the parties enter into a contract enforceable as a compromise of a will contest under sec. 318.31, Stats.?
The contestant-appellant, Mary Street, is correct when she asserts, through counsel, that a motion to quash is equivalent to a demurrer. Therefore the petition and the documents made a part thereof by reference must state facts sufficient to entitle the petitioner to the relief sought. The corollary rules that the facts stated in the petition are assumed to be true and entitled to liberal construction are also to be applied in ruling on a motion to quash.
In re Estate of Holden (1875), 37 Wis. 98.
Although the proponent-respondent, Marjorie L. Owens, did deny and controvert some of the facts alleged in the petition, and the court did find some facts that were controverted, we confine ourselves to the allegation of the petition, its incorporations, and the will.
This court in Estate of Jorgensen (1954), 267 Wis. 1, 64 N.W.2d 430, declared the statute constitutional, but held the contract to compromise did not affect the terms of the will but merely recognized the right of a legatee or devisee to dispose of all or part of his legacy or devise as a compromise with a contestant. At pages 8 and 9, it is stated:
". . . The transfer of a legacy under a will takes place at the moment of the testator's death and is from the testator to the legatee, who takes the entire legacy. Any disposition or assignment of a part or of the whole of the legacy is, thereafter, from the legatee to the contestants. Sec. 318.31 must therefore be construed merely as an authorization to the court to give validity to will-contest compromises which before the enactment of that statute were invalid in Wisconsin, and under such construction must be held to be constitutional."
Therefore, under the present law of this state, a contract between a legatee and a will contestant to compromise the dispute, if otherwise valid, is enforceable.
The trial court in its written memorandum stated: "The court concludes that neither the terms nor existence of the contract are pleaded with such certainty to state a cause of action entitling Mary to specific performance against Marjorie." We agree.
For the purpose of the motion to quash, we will assume that Marjorie L. Owens orally agreed to give Mary the items set forth in the memorandum made by Attorney Gramling on the day of the adverse examinations. The written stipulation, which was to embody those terms, goes beyond the oral agreement in several material aspects. Paragraph 3 provides that Marjorie L. Owens is to name Mary Street's children in her will as beneficiaries in an amount of at least $5,000 each. There is no comparable provision in the oral agreement.
Under the rule as set forth in Estate of Jorgensen, supra, the terms of the will are not altered. If this provision was to be substituted for the bequest and trust provisions of the will for the benefit of the Street children, a guardian ad litem would have to participate in and consent to such agreement. This was not done in this instance.
Paragraphs 5 and 6 deal with the payment of estate, gift, inheritance or succession taxes and payment of attorneys' fees. These matters were not orally agreed to and Marjorie refused to sign or join the stipulation.
The contestant-appellant, Mary Street, contends these last two items are determined as a matter of law and that their inclusion in the stipulation is immaterial.
It is true that under the rule as set forth in Estate of Jorgensen, supra, inheritance and succession taxes must be paid, calculated as though the property passed according to terms of the will. This rule does not prevent a contestant and a beneficiary from agreeing between themselves for a different liability for these amounts of such taxes.
We are of the opinion that the petition, the affidavit and exhibits in support thereof do not state facts sufficient to show Marjorie L. Owens agreed to the terms of the stipulation.
In addition thereto, the stipulation or agreement was not in writing as provided in sec. 318.31(5), Stats. 1967, nor (because it was not in writing) was the petition to the court verified as provided in sec. 318.31(6).
The trial court did not abuse its discretion in refusing to enforce the alleged oral contract and did not err in quashing the petition.
By the Court. — Order affirmed.