Sack v. Siekman

23 N.W.2d 706, 147 Neb. 416, 1946 Neb. LEXIS 89
CourtNebraska Supreme Court
DecidedJune 28, 1946
DocketNo. 32098
StatusPublished
Cited by2 cases

This text of 23 N.W.2d 706 (Sack v. Siekman) is published on Counsel Stack Legal Research, covering Nebraska Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sack v. Siekman, 23 N.W.2d 706, 147 Neb. 416, 1946 Neb. LEXIS 89 (Neb. 1946).

Opinion

Simmons, C. J.

In this actiqn plaintiff sought a decree in equity quieting title to real and personal property in him. The action is based on an alleged contract between plaintiff and his then wife, made pending an appeal of a divorce decree. The trial court held that plaintiff had not met the burden of proof, and made certain other findings. Plaintiff on appeal assigns, among other assignments, that the trial court erred in holding that the agreement on which the action was based wa's not signed by Agnes Sack, plaintiff’s former wife. We examine the record as to this assignment and affirm the judgment of the trial court.

The plaintiff in this action is the divorced husband of Agnes Sack or Sacks. Following the divorce she resumed her maiden name of Agnes Ketelhut. The answering defendants are Mabel Siekman, Marie F. Sheredan, and Margaret Porter, beneficiaries under the will of Agnes (Sack) Ketelhut, and Floyd Siekman, executor of the will.

Plaintiff and Agnes Ketelhut were married September 1, 1897, plaintiff’s name appearing in the certificate as Sack. On July 5, 1927, Agnes Sacks filed a petition in the district court for Cass County praying for a divorce from William T. Sacks.* The action was contested. On March 24, 1928, a divorce decree was entered granting a divorce to Mrs. [417]*417Sacks and giving her a judgment for permanent alimony-in the amount of $7,500, plus $500 attorneys’ fees and costs, and restoring her maiden name.

Plaintiff made several efforts to be relieved of the burdens of this, decree. On July 18, 1928, he filed a motion to vacate, modify, and set aside the judgment. A member of the Lincoln Bar signed as his attorney. By papers dated September 15, 1928, he sought a modification of this decree, two members of the Lincoln Bar signing as his attorneys, one being the same attorney who had signed the July papers. Plaintiff appealed from the decree and judgment, and filed his. transcript in this court on September 18, 1928. On November 23, 1928, execution was issued on the judgment and levy made upon real estate. On December 21, 1928, this court issued its mandate affirming the judgment for want of briefs.

On January 2, 1929, plaintiff filed objections to the confirmation of the sale of his lands under the execution of November 23, 1928. The same two members of the Lincoln Bar signed as his attorneys. Among other reasons given was that the divorce action was pending on appeal in this court when the execution was. issued. On January 14, 1929, the trial court confirmed the sale.

On October 22, 1942, Agnes Ketelhut executed her will. She died May 28, 1944. Petition to probate that will was filed in the county court of Cass County on June 12, 1944. It was admitted to probate on August 2, 1944. An appeal was taken and dismissed with prejudice on Séptember 10, 1945.

On July 5, 1944,' plaintiff filed a petition in the county court of Cass County praying for the probate of an instrument dated November 21, 1942. This instrument in longhand provided: “I will to Wm-T-Sack my real estate” describing it and naming certain others beneficiaries for small amounts. It bears a signature of one witness and is without an attestation clause. An heir at law of Agnes Ketelhut and the beneficiaries named in the October 22, [418]*4181942, will opposed the probate of the November 21, 1942, instrument. The court excluded it from evidence and plaintiff’s petition for probate was dismissed. No appeal was taken.

On February 17, 1945, plaintiff filed notice in the estate matter that he had filed suit in the district court to recover all the assets left at .her death by Agnes Ketelhut based upon a contract there set out, to which reference presently will be made.

In this action plaintiff alleged that on September 25, 1928, the divorce suit was pending in this court on appeal to reverse or modify the judgment for alimony, and that on that date he and his then wife, Agnes Sack, entered into an agreement as follows:

“Lincoln, Nebraska

September 25, 1928.

AGREEMENT OF CONTRACT

This agreement made this 25th day of September, 1928, between Agnes Sack, plaintiff, of Eagle, Cass County, Nebraska, of the First Part, and ffm. T. Sack, Defendant of the same place, of the Second Part.

Witnesseth as follows: The First Party hereby agrees at her death, after her debts are paid,.give all her property to the Second Party. If the First Party doesn’t get married again, and the Second Party to stop case in Supreme Court, the Second Party agrees to stop and drop, and not try the divorce case in Supreme Court, and let the First Party have divorce, the First Party keep one-half furniture, until Second Party called for his one-half.

The First Party sets out to> legal heirs, her brothers and sisters each $5.00.

Hattie Knadle ' Rynard Ketelhut

Frances Stange Henry Ketelhut

Martha Franke Otto Ketlehut

Kate Oberle Albert Ketelhut

Myrtle Blanchard Will Ketelhut.

[419]*419Witness our hands this, the 25th day of September, 1928.

Agnes Sack

Wm T Sack

R. H. Hagelin”

Plaintiff further alleged that Agnes Sack did not remarry, and was now deceased; that he had fully performed his part of the agreement; that Agnes Sack as Agnes Ketelhut tried to make a will on November 21, 1942, but the instrument failed because not properly executed; that the defendants Siekman, and the defendants Porter and Sheredan procured the execution of the October 22, 1942, will by undue influence and that an appeal from its probate was then pending; that heirs at law opposed the probate; that the defendants are in possession of the property; that he was entitled to have the contract of September 25, 1928, adjudged to be a valid contract; that he was entitled to the real and personal property of the estate save for the sums mentioned in the contract; that he was entitled to an order vesting the title to the real estate in him and commanding the defendants to turn the personal property to him.

He prayed judgment that the title of the real estate of which Agnes Ketelhut died seized be vested and quieted in him, and that the defendants be required to turn the personal property to him, and for equitable relief.

Defendants, Mabel Siekman and Marie F. Sheredan answered, denied generally, set up defenses going to the validity and enforceability of the purported contract which need not be set out here, and pleaded estoppel. The defendant, Floyd Siekman, as executor, denied generally, set up similar defenses, and pleaded estoppel. The defendant Porter denied generally and set up similar defenses. Replies were filed. Trial was had.

The trial court found that plaintiff had not met the burden of proof required to sustain his cause of action and found generally for the defendants. The court further found as a matter of law that the purported contract was [420]*420without valid consideration, an attempt to make a testamentary disposition of property, and invalid as such, and that plaintiff was estopped to maintain the action. Plaintiff’s petition was dismissed. Motion for a-new trial was filed and denied. Plaintiff appeals.

His first assignment of error is that the court erred in holding that the agreement of September 25, 1928, was not signed by Agnes Sack.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Cite This Page — Counsel Stack

Bluebook (online)
23 N.W.2d 706, 147 Neb. 416, 1946 Neb. LEXIS 89, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sack-v-siekman-neb-1946.