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06/07/83 REINHARD G. MIELKE AND MONA A. MIELKE v.

June 7, 1983

REINHARD G. MIELKE AND MONA A. MIELKE, PLAINTIFFS-RESPONDENTS,
v.
JOHN NORDENG, PERSONAL REPRESENTATIVE OF THE JAMES O. EGBERT ESTATE AND THE JAMES O. EGBERT ESTATE, DEFENDANTS-APPELLANTS



Appeal from a judgment of the Circuit Court for Rock County: Gerald W. Jaeckle, Judge.

Gartzke, P.j., Dykman, J. and W.l. Jackman, Reserve Judge.

The opinion of the court was delivered by: Gartzke

Reinhard and Mona Mielke brought this action against the personal representative of the James Egbert Estate for specific performance of the Mielkes' offer to decedent to purchase his home, which he accepted some six months before he died. The representative has appealed from a judgment granting specific performance. He argues that respondents should have filed a timely claim against decedent's estate, that the acceptance resulted from undue influence and that specific performance was inappropriate. We resolve these issues against appellant and affirm.

The trial court found that April 1979 the decedent accepted respondents' offer to purchase his house for $10,000, respondents to have possession of the property upon decedent's death or vacating the premises. The original price and date on the offer were crossed out and $8,000 and June 23, 1979, substituted. Decedent died October 23, 1979.

Construing the offer to purchase together with a "payment ledger" initialed by decedent, the trial court concluded that June 23 the parties modified the original offer to purchase to reflect a purchase price of $8,000. The court concluded that the offer to purchase was sufficiently definite and ordered specific performance of the agreement.

1. Failure to File Claim

Respondents have not filed a claim against the estate. The time for filing claims has expired. Claims against a decedent's estate are barred unless filed with the court within the time allowed. Sec. 859.01(1), Stats. The trial court denied defendant's motion to dismiss the complaint, predicated on sec. 859.01(1).

An action to compel a personal representative specifically to perform the contract of a decedent to convey real estate is not a claim against an estate. The plaintiff in such an action seeks title to the real estate, not merely payment from whatever assets the estate may have. Compare In re Estate of Taylor, 81 Wis. 2d 687, 703, 260 N.W.2d 803, 809 (1978) (action to declare valid lease and sale by decedent is not a claim against estate); Estate of Horkan, 193 Wis. 286, 290-91, 214 N.W. 438, 439-40 (1927) (action to impose property held by executor with a trust is a contest over title and not a claim against estate assets from which claimant seeks payment). Consequently respondents were not required to file a claim against the estate.

2. Sufficiency of Complaint

Appellant argues that unless the agreement between the parties is read with the subsequently drawn "payment ledger," it is too vague to be enforced, and that the complaint should have been dismissed for that reason.

When the trial court admitted the "payment ledger" in evidence, it concluded that, reading the offer and the ledger together, the agreement was unambiguous. Extrinsic evidence is admissible to determine the intent of the parties to an ambiguous contract. Patti v. Western Machine Co., 72 Wis. 2d 348, 351, 241 N.W.2d 158, 160 (1976). Appellant does not quarrel with the Conclusion that reading the documents together, the agreement is definite. Appellant's real argument is that the trial court erred in admitting the payment ledger. We turn to that issue.

3. Admissibility of Payment Record

Appellant bases his claim that the trial court should have excluded the payment ledger from evidence on the so-called "dead man's statute," sec. 885.16, Stats.

During the trial, Mona Mielke testified that she typed the payment ledger, that she presented it to the decedent July 15, 1979 and paid him $100 cash, that he receipted for that sum by initialing the payment ledger after having had an opportunity to read it, and that she again presented the ledger to him August 15, and in September and October, 1979, on which occasions she made payments to him of $100 or $200 and he receipted for those payments. Respondents then moved admission of the ledger. Appellant objected to its admission for any purpose except to show that respondents had made payments to decedent. Appellant told the court that insofar as it purported to explain the ...


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