Opinion
No. 213.
Submitted under sec. (Rule) 251.54 October 3, 1974. —
Decided October 29, 1974.
APPEAL from a judgment of the county court of Marathon county: ROBERT W. DEAN, Judge. Reversed, in part.
The cause was submitted for the appellant on the briefs of Larry W. Rader of Wausau, and for the respondent on the brief of Jerome A. Maeder, S.C., of Wausau.
This action involves the validity of a prenuptial agreement. The portion of the judgment appealed from ordered the estate to pay the outstanding mortgage on the joint property of the deceased and the petitioner upon the claim of the petitioner, the deceased's widow.
The deceased, Waldemar W. Luedtke, passed away at the age of seventy-three years on October 21, 1971. His first wife died sometime prior to 1965. He had two sons by his first marriage: Howard Luedtke, the personal representative of the estate, and William Luedtke, who had three children. William died prior to the proceedings in this case.
In October, 1965, Luedtke met Mrs. Alice Effa who was sixty-three years old at the time this proceeding was commenced. Mrs. Effa was a widow, her first husband having passed away on January 6, 1955. She had four children by her first marriage.
The parties were married on July 26, 1969. In August of 1968, the petitioner had loaned Luedtke $2,800. The loan was evidenced by a note payable upon demand and with interest at a rate of 10 percent per year. The claim made against the estate on the note is not in dispute.
On July 9, 1969, a little over two weeks before the wedding, Luedtke took petitioner to the office of his attorney, Peter Schmidt. While in Schmidt's office, both Luedtke and the petitioner were given copies of the agreement and Schmidt read it to them in its entirety. After it, Schmidt asked the petitioner if she had any questions. He testified she answered "No." He then asked her if she understood that the agreement meant "What is yours, is yours; and what is his, is his, with the exception of the house and of the furniture." Schmidt said she indicated that she understood. Petitioner testified that she did not realize that by signing the agreement she could make no claim against Luedtke's estate in the event of his death, although Schmidt testified that he told her that she would not be entitled to make any claim against Luedtke's estate in the event he predeceased her. At no time did petitioner indicate that she wanted an attorney to look the agreement over for her. The parties signed the agreement that day.
The agreement provides that neither person shall acquire by virtue of their marriage any ownership or right of control in the property of the other during coverture between them. Both Luedtke and the petitioner were to be allowed to make any disposition of his or her property as they desired by gift, sale or will. If either party died intestate, the survivor was to have no interest in the property of the estate of the deceased. It specifically provides that the agreement is a "legal and equitable bar to any and all claim [sic] which either party surviving the other may make to any part of the property of the other." If Luedtke predeceased Alice Effa, she was to be entitled to the outright ownership of the household goods and furniture, except the dining room set, and all right, title and interest that the two may have in any jointly owned property that was acquired or created either before or after their marriage.
In addition to signing the prenuptial agreement that day, Luedtke signed a quitclaim deed placing the property which was to be the home of Mr. and Mrs. Luedtke in joint tenancy. Attorney Schmidt testified that he explained that if Luedtke predeceased petitioner, the property would pass to her and that a quitclaim deed only passed whatever interest Luedtke had in the property and nothing more.
Shortly after the marriage, Mrs. Luedtke was involved in an accident and suffered a permanent back injury. While Mrs. Luedtke was recuperating, Mrs. Martha Laffin, Luedtke's sister, and Mrs. Betty Joan Sauer, Mrs. Luedtke's daughter, stayed with the Luedtkes. Mrs. Sauer, her husband and her daughter moved in with Mrs. Luedtke again on July 1, 1972, and have continued to reside with her.
Waldemar Luedtke died on October 21, 1971. His will dated January 21, 1960, provided that his entire estate was to go to Amelia Luedtke, his first wife, if she survived him. In the event that she did not survive him, the estate was to be divided equally between his two sons.
On November 29, 1971, Mrs. Luedtke filed a claim against the estate on the $2,800 note. On February 10, 1972, she filed an election under sec. 861.05, Stats., to take her share of the estate. She also petitioned for a hearing on the question of the validity of the antenuptial agreement. A claim for allowances out of the estate and, in the event the antenuptial agreement was found to be valid, a claim for the amount outstanding on the mortgage were made.
A hearing was held on November 9, 1972, on Mrs. Luedtke's claims. At the hearing, in addition to the facts already mentioned, testimony concerning certain conversations between Luedtke and others was brought out. Mrs. Martha L. Laffin, Luedtke's sister, testified, over objections that Luedtke had told her he planned to sell other land he owned so that he would be able to pay off the mortgage on his home and take Mrs. Luedtke on a trip. This conversation took place in the spring of 1971.
Mrs. Betty Joan Sauer, Mrs. Luedtke's daughter, testified that on two occasions Luedtke told her that he had promised Mrs. Luedtke to pay for the home and he was going to pay off the mortgage by selling some of his other land. This testimony was objected to on the basis of sec. 885.16, Stats. The trial court admitted the testimony subject to the objection and reserved its ruling on the question. The trial court, in its decision, held that this testimony could not be considered "due to the relationship of the daughter and her mother" and disregarded it.
Mr. Louis Abraham, vice-president and secretary of the Marathon County Savings Loan which held the mortgage on the home, testified that Luedtke, as a single man, was alone on the mortgage and that it was never transferred to Mrs. Luedtke's name. He also testified that Luedtke sold his old residence, to which the mortgage also applied, and applied at least some if not all the proceeds of the sale to the mortgage on the new residence.
The trial court ruled that the antenuptial agreement was valid and that it was the intent of the parties that Mrs. Luedtke would receive the homestead under the agreement free and clear of all indebtedness. The trial court also found that the prenuptial agreement barred Mrs. Luedtke from making any claims against the estate other than to have the mortgage paid and her claim on the note for $2,800 with interest. Judgment was entered February 7, 1973, ordering the estate to pay the savings and loan association for the mortgage outstanding, allowing Mrs. Luedtke's claim on the note and denying and disallowing her selections and allowances. The personal representative of the estate, Howard Luedtke, appeals from that portion of the judgment ordering the estate to pay the outstanding mortgage.
The issues are as follows:
1. Is the question of the validity of the antenuptial agreement properly before this court on this appeal?
2. Does the antenuptial agreement bar the claim of Mrs. Alice Luedtke against the estate of Waldemar Luedtke?
3. Did the trial court err in overruling the objection to testimony of Mrs. Alice Luedtke concerning conversations between her and the deceased?
4. Did the trial court err in sustaining the objection to the testimony of Mrs. Betty Sauer?
Question of validity of agreement.
The fourth paragraph of the "Prenuptial Agreement" does provide that neither party shall acquire by their marriage ". . . any ownership or right of control in the property of the other during coverture between them, nor any right of title in the property of the other by any reason of any divorce." The respondent argues that the agreement was void and invalid because of the divorce provision.The issue is not properly before the court on this appeal, however. It does not appear in the record that the respondent has filed either a motion to review or a cross appeal as required by sec. 274.12, Stats. This issue does not involve an error which, if corrected, would merely support the judgment or order appealed from. Sec. 274.12 (2). Therefore, this issue which respondent seeks to raise is not properly before this court. Antenuptial agreement as a bar to the claim.
The trial court held that the antenuptial agreement here was valid and did bar Mrs. Luedtke's claims for her share of the estate for allowances and for her selection of personal property. It also found, however, that the agreement was not complete and did not include in detail what the parties intended.Antenuptial agreements are governed by the same rules of construction as apply to other contracts. The basic purpose of construction is to ascertain and give effect to the intention of the parties. However, where there is no ambiguity in the agreement, there is no occasion for construction. 2 Lindey, Separation Agreements and Ante-Nuptial Contracts, pp. 90-52, 90-53, sec. 90.
The agreement specifically provided:
"It is further agreed That this covenant is to be considered a legal and equitable bar to any and all claim which either party surviving the other may make to any part of the property of the other, except as hereinafter provided."
The agreement also referred to the interest which the parties "may" have in the joint property. We find no ambiguity in the agreement.
Petitioner admittedly became aware of the construction mortgage in August of 1969 shortly after their marriage. However, she did nothing to assert her claim that she was to receive the property free and clear of any mortgage as part of the prenuptial agreement until after the death of Waldemar Luedtke.
Since the antenuptial agreement is not ambiguous and it is not apparent that anything is left out, parol evidence cannot be used to interpret the agreement. S H, Inc. v. Sladky (1966), 32 Wis.2d 686, 146 N.W.2d 488.
We conclude that the trial court was in error in permitting parol evidence to be given to interpret the antenuptial agreement. Therefore, that portion of the judgment which directed the estate to pay the mortgage outstanding on the joint property in the approximate amount of $18,387.91 is reversed.
In view of our determination that the antenuptial agreement is not ambiguous, we need not reach the remaining issues.
By the Court. — That part of the judgment which directed the estate to pay the mortgage outstanding on the joint property in the approximate sum of $18,387.91 is reversed. In all other respects, the judgment is affirmed.