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eration of the application to the first company, and was made a part of the new policy, and also providing that death by suicide within two years from its date was not a risk assumed, the court held that, considering the application and the second policy together, the period of incontestability was rendered uncertain, and in view of the rule that in case of ambiguity the policy should receive a liberal construction in favor of the assured, the period of incontestability ran from the date of the first policy. In two subsequent appeals in (1913) 181 Ill. App. 163, and (1914) 190 Ill. App. 460, the instant case was held res judicata upon this question.

VII. Difference between policy and statute as to time.

Under a policy providing that it should be incontestable one year from date, except for nonpayment of premiums, the insurer, after the expiration of that time, cannot maintain a suit to cancel the policy for fraud, even though a state statute gave insurance companies the right to institute suits to cancel policies, or to defend against them, two years from the date of the policy. Philadelphia L. Ins. Co. v. Arnold (1913) 97 S. C. 418, 81 S. E. 964, Ann. Cas. 1916C, 706. The court was of the opinion that the statute above referred to did not prohibit shorter periods, such as made in the instant case; the statute, according to the court, merely fixed a maximum time within which such actions might be brought.

was

Where a policy of life insurance provided that it should be incontestable if renewed beyond the first year and the premiums paid as required, the court held in Citizens L. Ins. Co. v. McClure (1910) 138 Ky. 138, 27 L.R.A. (N.S.) 1026, 127 S. W. 749, that as the second premium had been paid by the insured, and the policy renewed beyond the first year, the policy was incontestable and the insurer could not defend on the ground of false representations in the application, although a statute prescribed a period of five years within which relief could be obtained from contracts procured by fraud, the court being of the opin

ion that the Statute of Limitations applied to actions, and not to defenses. VIII. Death within the "period of grace" provided for paying premiums.

In Young v. Union L. Ins. Co. (1916) 202 Ill. App. 321, where a life insurance policy provided that it would remain in force for one month after the expiration of one year from its date, even though the second year's premiums should not be paid, and further provided that after one year from date it should be incontestable except for the nonpayment of premiums, the court held that at the death of the insured in the thirteenth month after the date of the policy, the second year's premium not having been paid, the policy was incontestable on the ground of fraudulent representations in the application. See also Fairfield v. Union L. Ins. Co. (1915) 196 III. App. 7, for a holding to the effect that the exercise by the insured of the privilege of paying the premium due within the thirty "days of grace" after the premium was due would not extend the period of incontestability a corresponding period.

IX. Miscellaneous.

The case of HUMPSTON V. STATE MUT. L. ASSUR. Co. (reported herewith) ante, 78, is authority for a holding that the bringing of a suit by the beneficiary within the period of contestability does not suspend the running of the period within which the insurer might contest, and by the failure of the latter to file its defense within the period of contestability limited by the incontestable clause, it is precluded from making a defense. on the policy except for defenses excepted from the incontestable clause. To the same effect, see MISSOURI STATE L. INS. Co. v. CRANFORD (reported herewith) ante, 93.

An insurance company which, after the death of the insured and within the period of contestability, filed certain pleas in an action on the insurance policy, alleging oral misrepresentations by the insured, which were not a good defense, will be allowed, after the period of incontestability, to file pleas showing that the misrepre

sentations of the insured were contained in the written application for insurance. Joseph v. New York L. Ins. Co. (1920) 219 Ill. App. 452, affirmed in (1923) 308 Ill. 93, 139 N. E. 32.

In People's Mut. Ben. Soc. v. Templeton (1896) 16 Ind. App. 126, 44 N. E. 809, a policy providing that it should be "incontestable after one year from date, as provided in the bylaws," was held not to be rendered incontestable upon the death of the insured seven years after its date, where the by-laws provided that "all

deaths which occur within three years from the date of approval upon which the certificate is issued, or from the date of the last revival of said certificate, shall be incontestable." The court says: "There is no provision that where death occurs after three years the certificate shall be incontestable. What the effect of the stipulation may be in cases where death occurs after one year and within three years from the approval of the application or revival of the certificate, we need not further consider." R. P. D.

TONY FRIEDERS, Respt.,

V.

P. W. KRIER, Admr., etc., of John Frieders, Deceased, Appt.

Damages

Wisconsin Supreme Court - March 6, 1923.

(Frieders v. Frieders, 180 Wis. 430, 193 N. W. 77.)

breach of contract to will property.

1. The measure of damages for breach of a parol promise to will property to an injured employee if he will give no trouble because of the injury is not the amount of property promised, but what will compensate the employee for the injury under the terms of the Workmen's Compensation Act, with interest from the date when, in ordinary course, compensation should have been made.

[See note on this question beginning on page 129.] Contract to provide by will enforceability.

2. A promise by an employer to leave his injured employee an amount by will sufficient to keep him for life without working, if he will cause no trouble because of the injury, is unenforceable for lack of consideration, beyond the amount which would compensate for the injury.

Evidence - parol― to establish promise to will.

3. A contract to will property to an injured employee if the latter will make him no trouble cannot, in view of the Statute of Wills, be established by parol.

Release

effect inadequacy of con

sideration.

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4. A release executed without fraud, coercion, or undue influence, even though it may be an improvident settlement, cannot be ignored merely because the consideration was inadequate.

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(Crownheart and Eschweiler, JJ., dissent.)

APPEAL by defendant from a judgment of the Circuit Court for Waupaca County (Park, J.) in favor of claimant in an action brought to recover damages for alleged breach of a parol promise to will property to him. Reversed.

(Frieders v. Frieders, 180 Wis. 430, 193 N. W. 77.) Statement by Owen, J.:

During the month of February, 1914, Tony Frieders was an employee of his uncle, John Frieders, now deceased, working in a logging camp near Elmhurst. While in the performance of duties incident to his employment, he sustained personal injuries and was removed to a hospital at Clintonville. The evidence tends to show that, while he was in the hospital, his uncle called on him and told him that if he would not make any trouble because of the injury, he would leave him enough money in his will so that he would not have to work the rest of his life, and promised to take care of the doctor and hospital bill and care for him in every way. Within a few weeks the Travelers' Insurance Company, in which decedent carried compensation insurance, commenced paying to the plaintiff, and he accepted, weekly allowances in the manner provided by the Workmen's Compensation Act, and such payments were continued, and regularly accepted, by plaintiff, until July 8, 1914, when the final payment was made to him, and he executed a paper in the nature of a final release of the insurance company and of John Frieders, his uncle. The uncle died intestate.

This action was brought against the estate to recover for the breach of the agreement made by the uncle to provide for Tony in the will, so that he would not be required to work during the rest of his life. Fifty thousand dollars was manded. The case was tried before a jury, and the following special verdict returned:

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Q. (1) What sum will compensate Tony Frieders for the injuries he received February 17, 1914?

A. $4,000.

Q. (2) What sum will compensate Tony Frieders for the failure of John Frieders to keep his agreement to provide for Tony Frieders in his will?

A. $38,000.

Upon this verdict, judgment was

rendered against the estate in the sum of $30,000, from which judgment the estate brings this appeal.

Mr. Llewellyn Cole, for appellant Decedent's legal liability in respect to the personal injuries to plaintiff was clearly the liability imposed by the Compensation Act.

Anderson v. Miller Scrap Iron Co. 169 Wis. 106, 170 N. W. 275, 171 N. W. 935; Milwaukee v. Althoff, 156 Wis. 68, L.R.A.1916A, 327, 145 N. W. 238, 4 N. C. C. A. 110; Vennen v. New Dells Lumber Co. 161 Wis. 370, L.R.A.1916A, 273, 154 N. W. 640, Ann. Cas. 1918B, 293, 10 N. C. C. A. 729.

Claimant cannot legally maintain that the formal written contract of settlement through the insurance company is void and of no effect, as against the verbal agreement for the settlement of the same claim. The written contract cannot be contradicted or varied by the verbal agreement.

Jackowski v. Illinois Steel Co. 103 Wis. 448, 79 N. W. 757; Schultz v. Coon, 51 Wis. 416, 37 Am. Rep. 839, 8 N. W. 285; Conant v. Kimball, 95 Wis. 550, 70 N. W. 74; 10 R. C. L. 1026; Jones, Ev. 502; 22 C. J. 1129.

The verbal agreement, so far as it was a promise to pay more than the amount of the statutory liability for the personal injury together with a reasonable amount for services rendered, if any, is void.

Merrick v. Giddings, 1 Mackey, 394; Wehnes v. Marsh, 103 Neb. 120, 170 N. W. 606; 1 Beach, Constr. § 161; Murtha v. Donohoo, 149 Wis. 481, 41 L.R.A. (N. S.) 246, 134 N. W. 406, 136 N. W. 158; Wald's Pollock, Contr. 3d ed. pp. 199, 200; Ryan v. Dockery, 134 Wis. 431, 15 L.R.A. (N.S.) 491, 126 Am. St. Rep. 1025, 114 N. W. 820; 13 C. J. 351; Armstrong v. Prentice, 86 Wis. 210, 56 N. W. 742; Padden v. Tronson, 45 Wis. 126; 1 Elliott, Contr. § 235.

The verbal agreement is void for uncertainty.

Freeman v. Morris, 131 Wis. 216, 120 Am. St. Rep. 1038, 109 N. W. 983, 11 Ann. Cas. 481; 40 Cyc. 1064, note 59; Winke v. Olson, 164 Wis. 427, 160 N. W. 164; Dilger v. McQuade, 158 Wis. 328, 148 N. W. 1085; 40 Cyc. 1072; Heath v. Cuppel, 163 Wis. 62, 157 N. W. 527; Bayliss v. Picture, 24 Wis. 651.

The release of July 8, 1914, executed by plaintiff, is a bar to any recovery by him on the verbal agreement.

10 R. C. L. 1026; Conant v. Kimball, 95 Wis. 550, 70 N. W. 74; Twohy Mer

cantile Co. v. McDonald, 108 Wis. 21, 83 N. W. 1107; Steffen v. Supreme Assembly, 130 Wis. 485, 110 N. W. 401; Richtman v. Watson, 150 Wis. 385, 136 N. W. 797; Schultz v. Coon, 51 Wis. 416, 37 Am. Rep. 839, 8 N. W. 285; Jones, Ev. 502; 22 C. J. 1129; Jackowski v. Illinois Steel Co. 103 Wis. 448, 79 N. W. 757.

The proper measure of damages for the breach of a contract to provide by will is the reasonable value of the consideration upon which the promise so to compensate is based.

Murtha v. Donohoo, 41 L.R.A. (N.S.) 246 and note, 149 Wis. 481, 134 N. W. 406, 136 N. W. 158; 3 Elliott, Contr. 2220; Bayliss v. Pricture, supra.

The verbal agreement should not be regarded with favor by the court. It is contrary to the spirit and policy of the Compensation Act.

Holmes v. Connable, 111 Iowa, 298, 82 N. W. 781; Dilger v. McQuade, 158 Wis. 328, 148 N. W. 1085.

Messrs. Brunner & Brunner and P. H. Martin, for respondent:

There was a contractual relation between decedent and claimant; and unless the obligation growing out of this contractual relation was released, there was, concededly, a breach thereof, and most serious damage, by the failure of decedent to provide by will as agreed.

McNaughton v. McClure, 169 Wis. 288, 171 N. W. 936; Murtha v. Donohoo, 149 Wis. 481, 41 L.R.A. (N.S.) 246, 134 N. W. 406, 136 N. W. 158; Dilger v. McQuade, 158 Wis. 328, 148 N. W. 1085; Jilson v. Gilbert, 26 Wis. 637, 7 Am. Rep. 100; Hawes v. Woolcock, 26 Wis. 629; Silverthorn v. Wylie, 96 Wis. 69, 71 N. W. 107; Olson v. Olson, 149 Wis. 248, 135 N. W. 836; Sixta v. Ontonagon Valley Land Co. 148 Wis. 186, 134 N. W. 341; Hewett v. Currier, 63 Wis. 386, 23 N. W. 884; 1 Elliott, Contr. 219-221; Second Nat. Bank v. Merrill, 81 Wis. 142, 29 Am. St. Rep. 870, 50 N. W. 503; Holz v. Hanson, 115 Wis. 236, 91 N. W. 663; Buechel v. Buechel, 65 Wis. 532, 27 N. W. 318; Young v. French, 35 Wis. 111; Sax v. Detroit, G. H. & M. R. Co. 125 Mich. 252, 84 Am. St. Rep. 572. 84 N. W. 314; 13 C. J. 342, notes 10 and 10a. The agreement was not void for uncertainty.

Eastern R. Co. v. Tuteur, 127 Wis. 382, 105 N. W. 1067; McCall Co. v. Icks, 107 Wis. 232, 83 N. W. 300; Woodward v. Smith, 109 Wis. 607, 85 N. W. 424; Excelsior Wrapper Co. v. Messin

ger, 116 Wis. 549, 93 N. W. 459; W. G. Taylor Co. v. Bannerman, 120 Wis. 189, 97 N. W. 918.

Owen, J., delivered the opinion of the court:

At the time of the injury to the plaintiff, he and his employer, the deceased uncle, were concededly subject to the provisions of the Workmen's Compensation Act. Stat. 1921, §§ 2394-1 et seq. Immediately upon the injury, therefore, a liability was imposed by law upon the uncle, now deceased, to make compensation for such injuries according to the rates and schedules provided in that act. The amount of the liability thus imposed could have been quite easily and definitely determined. For the present purposes it is quite safe to say that it would not have exceeded $5,000. The jury found that $4,000 was reasonable compensation for the injury sustained. At a time, therefore, when the deceased uncle was under a legal obligation to the plaintiff in an amount not to exceed $5,000, he agreed with the plaintiff that if he would make him no trouble because of the injuries sustained, he would make provision for him in his will so that he (the plaintiff) would never have to work. He died without making such a provision, and the question is, What is the measure of plaintiff's damages for the breach of the contract?

In Murtha v. Donohoo, 149 Wis. 481, 41 L.R.A. (N.S.) 246, 136 N. W. 158, it appeared that the claimant had supplied the deceased, during a period of six years, with food, shelter, clothing, and money, the aggregate amount of which does not appear. This was all furnished prior to 1898. During the spring of 1901 the deceased promised claimant that he would give him, by his last will, the sum of $1,000 for what he had done for him. He died leaving no such provision in his will. Claimant sought to recover the $1,000 so promised. The court held that the agreement was valid and binding, but that the measure of damages was the value of the executed con

(Frieders v. Frieders, 180 Wis. 430, 193 N. W. 77.)

sideration for the agreement, and not the amount of the promised legacy, the court saying: "In a case like the present, where the promise to compensate by legacy is based upon a past or executed consideration, the recovery must be limited to the amount of the demand so to be compensated, or the reasonable value thereof, where the amount is not fixed and definite."

We can see no substantial, if indeed there be any shadow of, distinction between this and the Murtha Case. In both cases that which gave rise to a liability on the part of the deceased to the claimant had occurred before the promise was made. In the Murtha Case the courtesies, consisting of food, shelter, clothing, and money, which founded the consideration for the promise, had all been contributed prior to the promise to compensate in the form of a legacy. Here the injury, which formed the consideration and constituted the reason and motive for the promise, had occurred, and liability had already attached. In neither case, however, was there any consideration for the promise to compensate beyond the amount of legal liability, except the implied or perhaps express promise to forbear enforcement of an existing legal right. In the instant case that consideration was out of all reasonable proportion to the amount promised over and above the actual legal liability, and to permit a recovery of $30,provide by will 000 is practically tantamount to the enforcement of a naked promise to make a bequest.

Contract-to

-enforceability.

The statute prescribing the manner in which wills shall be executed is in the nature of a statute of frauds. Perhaps no other legal document requires such solemnity in the manner of its execution. This is for the purpose of securing the highest degree of assurance that the testator's property will go as he wills it, and to make it correspondingly difficult to divert it into other channels. To permit this judgment

to stand would open up an alluring field for frauds and perjuries, and neutralize to a great degree the safeguards which the statute throws about the estates of deceased persons. It would permit anyone having a claim against an estate of a deceased person, and being fraudulently disposed, to manufacture evidence to show that the enforcement of the claim was postponed because of an oral promise made by the testator that he would liquidate the claim by a provision in his will, and the estate of a testator would not go according to his written direction, executed in accordance with the solemnities required by the statute, but according to parol testimony, produced at a time when the testator cannot be

Evidence-parol

present to refute it. to establish While justice might promise to will. be done in the instant case, a recognition of such a rule would point the way for the contravention of a statute designed by the legislature to prevent the distribution of estates except in accordance with the will of the testator. It would be a most dangerous rule, subversive of public policy and destructive of the legislative will. As was said of the rule, embodied in § 4069, by Mr. Justice Barnes in Dilger v. McQuade, 158 Wis. 328, 148 N. W. 1085:

"Meritorious claims may occasionally be lost by the enforcement of such a rule, but the trumped-up claims that may be defeated by it will, in all probability, form a much more nu

merous class."

The rule of the Murtha Case responds to every call of justice. It recognizes the validity of the contract; it postpones the running of the Statute of Limitations until the death of the testator; it allows, as damages for the breach, the full value of the services rendered, or any other consideration passing from the claimant to the testator, upon which the original claim rests. To allow more is to enforce a promised legacy, which should be recognized only when created in the

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