Grochowski v. Grochowski

Jackson, C.

On February 25, 1897, John Grochowsld died leaving a will by the terms of which he bequeathed $100 to St. Mary’s Catholic Church at West Point, $15 to his son Thomas Grochowski, $200 to each of the five children of Thomas Grochowski, $1,000 to his grandson Mike Gro-chowski, $1,500 to his daughter Mary, and the remainder of his estate, including a farm of 160 acres, to his son Michael Grochowski, on the condition that the son Michael provide for the'widow of the deceased during her lifetime.. The son, Michael Grochowski, was appointed executor of the will. The will was proposed for probate in the county court of Cuming county, and the son Thomas appeared with his attorney for the purpose of contesting the will. Negotiations between the brothers, Michael and Thomas Grochowski, led to the following written contract: “Whereas, John Grochowski, in the seventh item of his last will and testament, bequeathed his farm, consisting of 160 acres, to his son Mike Grochowski upon certain conditions therein stated, and, whereas, said will was on this day offered for probate in the county court of Cuming county, Nebraska, and, whereas, Thomas Gro-chowski objected to the probate of said will: Now, therefore, for the purpose of avoiding litigation it is hereby agreed by and between the said Mike Grochowski and Thomas Grochowski that the said Thomas Grochowski withdraw all objections to the probating of said will and in consideration thereof that said Mike Grochowski hereby agrees with the said Thomas Grochowski that he will fulfil all the conditions and stipulations contained in the said seventh item in the last will and testament of the said John Grochowski, and after the death of their mother named in said item, he will divide whatever is left of the farm named in said item or from tlie proceeds of the sale thereof with the said Thomas Grochowsld, but said property is not to be sold by the said Mike Grochowsld, unless it is necessary to do so for the purpose of supporting their mother in the manner provided in said seventh item of said will, unless with the consent of said Thomas Grochowsld. Dated at West Point, April 5, 1897. Chas. McDermott, P. E. O’Sullivan, Peter Hasler, Mike Grochowsld, Thomas Grochowsld.” The widow of John Grochowsld died in 1902, and on February 24, 1903, this action was instituted by the plaintiff to enforce a specific performance of the contract with his brother Michael.

In the petition it was alleged that the contract, as agreed upon between .the parties, included the residue of the personal estate of the deceased as well as the 160 acre farm, but by mistake of the scrivener the personal estate* was omitted from the written agreement, and the prayer included a request for a reformation of the contract, an accounting of the personal estate, and the conveyance of an undivided one-half interest in the land. In the answer it is alleged, that Mary Grochowsld, daughter of the deceased and one of the legatees, Avas at the death of her father, and still is, an insane person, that she took no part in the .compromise and settlement between the brothers, Thomas and Michael- GrochOAvski, and for that reason the compromise and agreement betAveen the brothers was void as against public policy; that the contract Avas without consideration; that the estate had not been fully settled, and the action Avas prematurely brought. At the trial, and after the plaintiff had rested, the defendant was permitted to amend his ansAver. In the amendment it Avas charged that the actual agreement between the brothers, Thomas and Michael Grochowski, Avas that in consideration of the withdraAval of the objections to the probating of the Avill by the brother Thomas, and an agreement by Thomas GrochOAvski. to care for and keep their mother one-half of the time during the remainder of her life, the defendant Avould upon the death of the mother convey one-half interest in the farm to the plaintiff; that by mistake the scrivener omitted the provision providing for the care of the mother one-half of the time by the plaintiff; and the prayer included a request for the reformation of the contract to that effect. It was alleged that the plaintiff had neglected and refused to perform the conditions of the contract on his part, and had .never contributed toward the support of the mother; by reason of such refusal the defendant had been compelled to provide and had provided for the mother at his own expense. The decree of the district court gave the plaintiff an undivided one-half interest in the real estate and quieted the title in him to that extent. The court found specifically that in consideration of the care of the widow and the expenses incident to her maintenance the defendant Avas entitled to hold and receive all of the moneys and other property of the estate of the deceased received by him, and the rents of the real estate to March 1, 1905, and taxed the costs, one-half to each litigant. The defendant appeals.

The claim that the compromise and contract is void as against public policy does not seem to be well taken. It appears from the evidence that, Avliile the contract was drafted in a law office in the city of West Point, yet it was revised and signed in the office of the county judge of Cuming county where the probate proceedings were then pending. A clerk in the county judge’s office.assisted in revising the agreement at the suggestion of the parties, and presumably the adjustment of the entire matter Avas had with the knoAvledge of the county judge. The rights of no persons other than the contracting parties Avere prejudicially affected, nor did the settlement affect the due administration of justice. There is no evidence of a connivance to defeat or defraud the insane sister of any of her rights. She Avas not a necessary party to the agreement, and Ave find no reason for disturbing the decree of the trial court in so far as it sustains the validity of the contract and the terms thereof as contended for by the plaintiff.

By the Court: For the reasons stated in the foregoing opinion, the decree of the district court is

Affirmed.