Opinion
April 6, 1960 —
May 3, 1960.
APPEAL from a judgment of the county court of La Fayette county: J. F. COLLINS, Judge. Affirmed.
For the appellant there were briefs by Geffs, Geffs, Block Geffs of Janesville, attorneys, and James W. Shelden of Rockford, Illinois, of counsel, and oral argument by Jacob Geffs and Robert H. Geffs.
For the respondent there was a brief and oral argument by Frank D. Hamilton of Dodgeville.
The judgment declared that Elvin J. Russell had timely elected to purchase real estate in accordance with the terms of the will of his father, Elvin R. Russell, deceased; and the judgment ordered that a conveyance of the real estate should be executed and delivered to Elvin J. Russell upon his payment of the purchase price.
The material parts of the will devised to his widow a life estate in testator's farm of 199 acres with remainder over to his son and daughter in equal shares.
But the will made further provisions respecting the farm, as follows:
". . . Provided that my son, Elvin J. Russell, shall have, and I hereby give and devise unto him, the right to purchase my farm of One Hundred Ninety-nine (199) acres, more or less, in the township of Gratiot, La Fayette county, Wisconsin, for the sum of One Hundred Dollars ($100) per acre, regardless of what the official appraisal thereof may be. But he must elect to take the same at said sum of One Hundred Dollars ($100) per acre within six (6) months of the death of the last of us, myself and my said wife."
The son Elvin J. is respondent, the daughter Bernice is appellant.
The widow survived Elvin R. Russell but died October 25, 1957. On December 24, 1957, respondent, who is also the executor of his father's will, went to the attorney who was conducting probate of the father's estate and told the attorney that the respondent intended to buy the said real estate on the terms stated in the will and asked the attorney what respondent should do to accomplish this. The attorney told Russell that he should sign a document stating that he elected to purchase and the attorney drafted the following statement which Russell signed on the same day. The paper reads:
"I, Elvin J. Russell, son and legatee of Elvin R. Russell, deceased, hereby elect to purchase the Russell farm according to the terms and conditions set forth in paragraph `Fifth' of the original will of said Elvin R. Russell, deceased.
"This election is made and filed for the purpose of complying with paragraph `Fifth' of said original will.
"Dated this 24th day of December, A. D., 1957.
"/s/ Elvin J. Russell." This document was kept by the attorney. Sometime later the attorney discovered that he had mislaid the paper. He told Russell so, and asked Russell to sign a replacement. Russell came to the attorney's office for that purpose and executed the following document:"I, Elvin J. Russell hereby make and file my election to purchase my father's farm according to the terms of paragraph `Fifth' of his will, dated June 13, 1951.
"Dated this 27th day of February, 1958.
"/s/ Elvin J. Russell." The attorney retained possession of this paper also. The December 24th document was discovered before the trial and both documents were received in evidence. Neither paper was filed in the county court until more than six months had passed after the death of the widow.At the December 24th meeting, Russell asked the attorney's advice about raising the money to pay Bernice for her interest and the attorney said that his wife had recently received an inheritance and would lend Russell the needed cash. Thereupon, in the month of January, 1958, Russell and his wife went to Rockford, where his sister lived, and told her that he elected to buy the farm in accordance with the terms of the will, and asked her whether she wanted to be paid off in cash or in some other manner. Bernice replied that she wanted to leave her money in the farm. The Russells returned home and a day or two later Russell received a letter from Bernice which said that she had thought the matter over and had determined she would rather have cash. Mr. Russell then informed the attorney of this and the latter prepared legal documents upon that theory, but before the documents were executed, Bernice against changed her mind and told her brother that she would leave her money in the farm. The documents already drafted were then destroyed.
Russell then made capital improvements on the farm buildings and Bernice knew he was doing so.
On December 16, 1958, Bernice filed a petition with the county court by which she "objects to the election of Elvin J. Russell to purchase, pursuant to paragraph Fifth of the last will and testament of Elvin R. Russell, deceased, for the reason that said election is not timely pursuant to the terms and conditions as set forth in the will of Elvin R. Russell, deceased."
On February 2, 1959, by petition to the court, Russell alleged that within six months following the death of his mother he had elected to purchase the farm in accordance with the terms of the will and is ready to pay the purchase price and prays, therefore, that the court direct a conveyance to him upon payment in such manner as the court may direct.
Additional facts will be stated in the opinion.
By its judgment the trial court held that Russell made a valid election to purchase within the terms stated in the will and directed the procedure by which Russell might pay the price and receive a conveyance of the property. The latter administrative details are not attacked and the appellant, Bernice, submits only that within the six months following the widow's death on October 25, 1957, Russell had not made a valid election complying with the terms of the will and therefore the court committed reversible error by its determination that there was a valid election and that it was timely.
Appellant offered no evidence at the trial and her contention is simply that, as a matter of law, Russell did not elect to purchase within six months of the widow's death.
First, appellant submits that the written elections which Russell signed in December, 1957, and February, 1958, were not filed in the court until after the six months' period but were retained by his own attorney and were therefore of no effect. Second, Russell's oral communication to Bernice in January, 1958, of his election to purchase, was ineffective as an election because it was not in writing. We will consider this argument first.
The will does not specify the election to be made in any particular manner, such as being in writing or being filed in court or elsewhere so long as an election is made within the time limit. The court has no power to add to the conditions expressed in a will where, as here, there is no evidence that the testator inadvertently omitted an intended condition.
Appellant submits that the statute of frauds requires a valid election to purchase real estate must be in writing. The part of the statute of frauds applicable to this case is sec. 240.07, which reads:
"LIMITATION OF SEC. 240.06. Sec. 240.06 shall not be construed to affect in any manner the power of a testator in the disposition of his real estate by a last will and testament nor to prevent any trust from arising or being extinguished by implication or operation of law."
This section prevents other parts of the statute of frauds from imposing conditions upon the testator's disposition of his estate, including conditions upon the mode of election. In the absence of statute or unless required by the terms of the offer, an acceptance of an offer to sell is not required to be in writing. 55 Am. Jur., Vendor and Purchaser, p. 483, sec. 15. Appellant argues that a transfer of title to an interest in real estate requires a writing conforming to the statute of frauds. But we must not overlook the fact that it is not Russell's election to buy which transfers the title. The election is only a condition precedent which he must fulfil before he has the right to buy. It is like any other condition precedent, such as reaching a certain age or marrying a certain girl, and the statute has nothing to do with the performance of the condition precedent unless the testator included it in the conditions. If the court can find from the evidence that Russell elected within the time stated, the condition is fulfilled and his right to purchase accrues.
The right to purchase given Russell by the will is closely akin to the grant of an option to buy, and in such a case we said:
"`An option is, in a sense, a continuing offer of a contract; and, if the offeree decides to exercise his right to demand the conveyance or other act contemplated, he must signify that fact to the offerer.' 21 Am. Eng. Ency. of Law (2d ed.), p. 930.
"Such acceptance may be verbally given, as was done in the case at bar. Id. . . ." Sizer v. Clark (1903), 116 Wis. 534, 540, 93 N.W. 539.
In the ordinary case of offer and acceptance where no mode or method of acceptance is specified in the offer, the offeree should communicate his acceptance to the offerer in order to make the acceptance binding. In the case at bar, the offerer is dead and his personal representative is the offeree. Very likely unrevealed communications between Elvin J. Russell as an individual and himself in his representative capacity would not satisfy the requirement of an acceptance of an offer, that is, an election to exercise his right to purchase. But tinder present circumstances, we consider that an election to buy orally communicated by the offeree to the adverse party, the one whose interests are to be bought, fulfils the requirement of an election effective to meet the terms and conditions of this will. The undisputed fact is that in January, 1958, respondent informed appellant that he elects to purchase the farm upon the terms set by his father's will; many other supporting facts are in evidence but are not material since nothing to impeach that election appears by fact or inference. Accordingly, we affirm the judgment on this ground and it is unnecessary to examine the effect of the elections written and signed during the six months' period but not filed in county court until afterwards.
By the Court. — Judgment affirmed.