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COURT OF APPEALS DECISION DATED AND RELEASED July 27, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0733-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
ELIZABETH ANN MASSEY,
TERRY NODOLF, DON
NODOLF,
and ROBERT NODOLF,
Plaintiffs-Appellants,
v.
DENNIS A. CARROLL,
Defendant-Respondent,
UNITED METHODIST
CHURCH,
CONGREGATIONAL CHURCH,
Defendants,
HARTFORD CITY LIBRARY,
Defendant-Respondent,
WASHINGTON COUNTY
HUMANE SOCIETY,
FIRST PRESBYTERIAN
CHURCH,
HARTFORD MEMORIAL
HOSPITAL, INC.,
Defendants,
HARTFORD RESCUE SQUAD,
CEDAR LAKE HOME,
Defendants-Respondents,
AMERICAN LEGION
AUXILIARY
c/o HILDA MAAS,
Defendant,
THEODORE LUDEMANN,
Defendant-Respondent,
MRS. ALPHA BRADY,
JESSE BYTELL,
IRENE MUNDL, BARBARA
MCGEOUGH,
MARY SADDLER, LEONARD
SADDLER,
ILA LUDEMANN WEBER,
BEN MUNDL,
ARNO MORTON and DAVID
MORTON,
Defendants.
APPEAL from an order of
the circuit court for Dodge County:
JOHN R. STORCK, Judge. Affirmed.
Before Gartzke, P.J.,
Dykman and Sundby, JJ.
PER CURIAM. Elizabeth Ann Massey, Terry Nodolf, Don
Nodolf, and Robert Nodolf appeal from an order admitting Florence Nodolf's 1977
will to probate. The issue is whether
Florence breached a contract not to revoke the 1966 joint will that she
executed with her deceased husband, Clement Nodolf. Because no evidence exists that a contract not to revoke ever
existed, we affirm.[1]
The 1966 will provided
that Clement and Florence "mutually covenant and agree, each in consideration
of the promise and act of the other" to dispose of their property as
declared in the will. Under its terms,
the surviving spouse received the deceased spouse's property, and Florence
agreed to leave all her property to Clement's children by a previous marriage
if she were the survivor. Clement died
in 1975. Florence executed a new will
in 1977, leaving fifty percent of her property to Clement's children, and fifty
percent to various other beneficiaries.
After Florence died in 1993, the appellants, Clement's daughter and his
son's children, sought enforcement of the 1966 will. This appeal ensues from the trial court's adverse decision on
that issue.
Section 853.13(2), Stats., removes any presumption that
the testators of a joint will have contracted not to revoke it. A joint will may therefore be revoked by one
of the testators unless provisions of the will sufficiently state a contract
not to revoke it, the will refers to a separate contract, or clear and
convincing evidence of a contract not to revoke exists apart from the
will. Here, although the language of
the 1966 will establishes a contract for a joint will, it does not state nor
refer to a contract not to revoke the will.
Nor have the appellants offered any other evidence that Florence and
Clement intended that the 1966 will not be revocable. Therefore, no breach occurred when Florence revoked the will
after Clement's death.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.