real estate * * * and it being a condition of said gift that said real estate shall revert to my mother in the event she survives me, now, therefore, in performance of said condition, I give and devise said real estate so conveyed by my mother to me, absolutely and in fee simple, unto my mother, Christina Buchholz, if she shall survive me, but if not, then said real estate shall become part of my residuary estate under my said will.'
2. In April, 1942, this identical parcel of land was appropriated by the government under the law of eminent domain for its war or defense purposes. The gross aware made to Frederick W. Buchholz was $ 119,000.
3. On November 21, 1944 Frederick W. Buchholz died and his will was admitted to probate in the following month. In the will thus probated no provision was made with respect to the transfer of August 15, 1941, and no reference was made to the codicil then executed by him.
4. Christina Buchholz survived until the 15th day of January, 1945. Between the date of the death of Frederick W. Buchholz on November 21, 1944 and Christina's death on January 15, 1945 no claim was filed by Christina against the estate of Frederick W. Buchholz.
5. When the land in question was appropriated by the government the home of Christina and its appurtenances were appropriated at the same time. This left Christina Buchholz in great distress of mind, and Frederick W. Buchholz undertook to procure another home for her. He did this by purchasing a residence property and causing the deed to be so drawn that it conveyed a life estate to Christina and the remainder to himself.
6. In the conversations between Christina and Frederick after the appropriation of the property mentioned and her home, Christina told Frederick that if he would purchase a home for her he could retain the money as she was not then interested in the proceeds of the award. Following this, however, she never ceased to claim the proceeds of the award as provided in the agreement. In like manner Frederick never denied or disavowed his obligation entered into on August 15, 1941. The matter was discussed many times between them and statements were made on other occasions to friends and relatives relating to the proceeds of the award. All of these statements and expressions, whether between Christina and Frederick, or separately, served to negative any suggestion that the contract of August 15, 1941 had been rescinded.
7. Both Christina and Frederick were confused with respect to their rights and obligations after the appropriation of the land by the government. There were expressions which indicated that they were doubtful whether the obligations of August 15, 1941 had been matured by such appropriation.
8. Christina Buchholz was the mother of Frederick W. Buchholz, and he was her only child. Whatever irritations and petty differences between them as disclosed by the evidence may have occurred or arisen, the fact remained that their relations were affectionate and each was solicitous of the welfare of the other. Their business relationship was close and confidential. They did not do business at arm's length. According to all of the testimony Christina desired that her son should not only have the real estate but in like manner the proceeds, subject only to the sole condition that if he predeceased her the proceeds would revert to her. She believed, and he believed, that he would outlive her. Accordingly, whatever was said and done was upon the hypothesis that she would die first. She did not by word or deed give up the right that would accrue to her if she survived Frederick. On the other hand, Frederick did not claim or understand that, if he died first, his obligation to reconvey had been rescinded.
9. When Frederick died Christina was and had been seriously ill. She suffered acutely, not only from her own physical ailments, but from mental distress occasioned by the premature death of her son. She apparently was not advised of her rights, nor did she understand what her rights were, or what she should have done with respect to the obligations of Frederick to her as evidenced by the codicil to his will of August 15, 1941.
10. Frederick W. Buchholz made certain advancements to his mother in his lifetime, and such advancements were made out of the proceeds of the award. For instance, he gave her a life estate in a home that cost $ 34,000; her age then being 65 years. He paid taxes on said property and caused it to be painted and decorated and certain alterations made, all for the benefit and comfort of his mother. These expenditures were made out of the proceeds of the award. Moreover, he paid $ 29,000 as attorney's fees for services in connection with the award. His estate is entitled to credit for this amount.
Conclusions of Law.
1. The codicil to the will of Frederick W. Buchholz was conclusive evidence of the agreement mentioned therein by him and Christina and of his obligation with respect to the disposition of the proceeds of the award in the event of his death before that of Christina. The evidence of such agreement was clear, cogent and beyond a reasonable doubt.
2. The agreement of August 15, 1941 was not rescinded by any contract or agreement, express or implied, between Christina and Frederick. Since Frederick died first, it became a binding and subsisting obligation of his estate and plaintiffs are entitled to the relief as hereinbefore stated.
3. No responsible act of Christina Buchholz waived the obligation of Frederick's estate to her under said agreement and the plaintiffs are not estopped to assert their claims.
4. The proceeds of the award would accrue to the estate of Christina Buchholz and to the benefit of her residuary legatees. The plaintiffs being such, they became and are entitled to maintain this suit since the executor of the estate of Christina Buchholz failed and refused to take action.
5. The rights of the plaintiff's have not been barred by the statute of limitations as the right of action did not accrue until after the probation of Frederick's will in December, 1944.
6. After deducting attorney's fees, the value of the life estate of Christina Buchholz in the property procured for her by Frederick, and after deducting all expenses of taxes, decoration and alterations in making the home comfortable for Christina, the balance of the award should be paid over by the executors of the estate of Frederick Buchholz to the executor of the estate of Christina Buchholz.
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