Opinion
January 15, 1948. —
February 17, 1948.
APPEAL from two orders of the county court of Racine county: J. ALLAN SIMPSON, Judge. Reversed.
For the appellant there was a brief by Benson, Butchart, Haley Benson of Racine, and oral argument by Donald A. Butchart.
For the respondent there was a brief by Gittings, Janecky Buelow of Racine, and oral argument by Earl F. Buelow.
The widow of Paul Paulson filed a claim against his estate November 22, 1946, based on an alleged oral contract. The claim was later amended and on January 20, 1947, a demurrer was entered to the amended complaint by the First National Bank Trust Company of Racine as executor of the will of Paul Paulson. Before any determination was made on those pleadings, the widow died testate. Upon motion by the executor of her estate, an order was issued reviving the proceedings. On August 11, 1947, the county court entered an order overruling the demurrer and an order permitting further amendment of the claim. The executor of the Paul Paulson will appeals.
The pleadings reveal the following facts: In 1939, Paul Paulson, a widower, who had no children, and Martha Jones, a widow, who had three adult children, were contemplating marriage. It is alleged that they entered into an oral agreement that if Martha Jones would sign a written agreement waiving any interest or claim to any of the property of Paul Paulson, then Paul Paulson would execute a will bequeathing and devising all of his estate to her with the exception of bequests aggregating $3,400.
On August 26, 1939, the parties executed a written antenuptial agreement, which provided in part as follows:
"Whereas, a marriage is shortly to be had and solemnized by and between said parties, and upon the treaty therefor each of them, the said parties, has consented and agreed with the other that .neither of them shall have possession or acquire any estate or interest in any property, real or personal, or right of action, of which the other of them is or shall be at the time of said marriage seized or possessed; and that said Paul Paulson shall have no right, interest or claim in the estate of Martha Jones, real or personal after her decease, as tenant by curtesy or administrator, or by virtue of any statute of distribution; and that Martha Jones shall have no right to dower or homestead in any real estate of which Paul Paulson is or shall be seized or possessed, and no claim to his personal estate by virtue of any statute of distribution."
On August 30, 1939, the parties were married. On that same day Paul Paulson executed a will whereby he made sixteen bequests totaling $3,400 and left the residue of his estate to his wife. The written antenuptial agreement was acknowledged in the will but direction was given to disregard it in so far as provision was made in the will for the wife.
On February 10, 1943, Paul Paulson executed another will, revoking the 1939 will. On March 9, 1945, he executed a codicil to the 1943 will. Under this later will and codicil seven bequests aggregating $2,600 were made to various persons and the residue was to be placed in trust for the following purposes: To maintain Mr. Paulson's home for occupancy by his wife until her death, free of expense to her; to pay his wife $100 per month until her death, or such greater sum as the county court might deem necessary to maintain her in the comfort to which she was accustomed; to pay her last illness and funeral expense; and on her death, to distribute the trust assets to two named individuals. Again, in this later will the written antenuptial agreement was acknowledged, but direction was given as before to disregard it.
Paul Paulson died July 19, 1946, and his widow filed a claim within the time allowed for filing claims.
The demurrer to the claim of the respondent should have been sustained. The claim upon its face does not state facts sufficient to constitute a cause of action. In order to prevail, the claimant must have a valid contract entitling her to almost the entire estate. To be valid, the contract, since it would pass an interest in land, would have to be in writing to comply with the statute of frauds, sec. 240.08, Stats. 1939. It would be one of those contracts which, in order to be valid, must exist in a note or memorandum, expressing the consideration and subscribed by the party charged therewith. To be valid it would also have to comply with sec. 241.02 (3), Stats. 1939. That statute requires that agreements in consideration of marriage be in writing. Its purpose is to prevent claims that might be prompted by selfish desires from arising after the death of the contracting party. Admittedly, the agreement upon which the widow based her claim to the bulk of the estate was not in writing. But it is alleged that the execution of the written antenuptial agreement and of Paul Paulson's 1939 will amounted to full performance of the oral contract. It is urged that this performance takes the oral contract out of the statute of frauds and complies with sec. 240.09, Stats. 1939. If that were true, the complaint would be sufficient to state a cause of action.
However, the written antenuptial agreement does not on its face appear to be made pursuant to the alleged oral agreement. The written antenuptial agreement is in itself a valid contract. It makes no reference to any previous oral agreement. In fact, it expressly excludes the claimant from having that which she now seeks — an interest in Paul Paulson's property. Her execution of the written antenuptial agreement amounted to the widow's signing a complete waiver and foregoing all claim to any and all of the property referred to. That is a sufficient and effective bar to any further claim on her part.
In spite of the fact that the written antenuptial agreement is in its terms contrary to the oral agreement, in performance of which it was allegedly executed, it is alleged that the consideration for the widow's signing the written agreement was the oral promise of Paul Paulson to devise and bequeath the bulk of his property to her. This allegation is inconsistent with the terms of the written agreement. That agreement expressly stipulated what the consideration was, and no mention was made of Paul Paulson's will. The widow or the executor of her estate under the parol-evidence rule could not be allowed to set up an inconsistent oral agreement, the subject matter of which is covered by a written contract made after the oral agreement. When we examine the promises set forth in the written agreement and the allegations now presented by claimant, it appears that they cover the identical subject matter and are inconsistent; that is; the oral agreement supposedly promised a performance different from that contracted for in the written agreement. Therefore that oral agreement is not susceptible of proof and has no legal existence, being as a matter of law merged in the written contract. Beers v. Atlas Assurance Co. (1934) 215 Wis. 165, 253 N.W. 584. The rule is stated as follows in 3 Jones, Commentaries on Evidence (2d ed.), p. 2699, sec. 1484: "All conversations and parol agreements between the parties prior to a written agreement are so merged therein that they cannot be given in evidence for the purpose of changing the contract or showing an intention or understanding different from that expressed in the written agreement." As long as the respondent could not be allowed to show that the written agreement was made in consideration of an inconsistent oral agreement concerning subject matter expressly covered by the written agreement, the amended claim does not state facts which constitute a cause of action,
With all that the pleadings reveal of what transpired here, it is clear that there is a valid written antenuptial agreement. The written contract existing and undisturbed is controlling. It is not incomplete, and on its face is certain as applied to the subject matter and states the entire agreement.
Since the order overruling the demurrer must therefore be reversed, it necessarily follows that the order allowing the executor of the widow's estate to further amend the complaint must also be reversed.
By the Court. — Orders reversed. Cause remanded with directions to sustain the demurrer.