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02/25/94 BLAKE G. BERGHEGER v. KAY A. BOYLE

February 25, 1994

BLAKE G. BERGHEGER, BRIAN F. BERGHEGER, AND BRENT C. BERGHEGER, AS INDEPENDENT COEXECUTORS OF THE ESTATE OF JENNIE H. A. BIEBEL, DECEASED, PLAINTIFFS-APPELLANTS,
v.
KAY A. BOYLE, THOMAS C. WANGELIN JR., ADMINISTRATOR WITH THE WILL ANNEXED OF THE ESTATE OF NORMAN J. BIEBEL, DECEASED, AND XEROX FINANCIAL SERVICES LIFE INSURANCE COMPANY, A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of St. Clair County. Nos. 90-CH-54 & 90-L-178. Consolidated. Honorable Richard A. Aguirre, Judge Presiding.

Petition for Leave to Appeal Denied June 2, 1994.

Maag, Lewis, Chapman

The opinion of the court was delivered by: Maag

JUSTICE MAAG delivered the opinion of the court:

In 1986 and later in 1988, Norman J. Biebel purchased several annuities (a total of four). At the time Norman purchased the annuities, he designated his first wife, Verna, as beneficiary of all four annuities. Verna died in December of 1988. A few weeks after Verna died, Norman changed the beneficiary of three of the annuities to his only child, Kay A. Boyle. The fourth annuity retained the designation of Verna as beneficiary. At all times subsequent to his purchase of the annuities Norman remained the owner.

In March and April of 1989, Norman and Jennie began making plans to be married. In anticipation of their marriage, they executed an antenuptial agreement, with the assistance of counsel. This agreement contained schedules of the assets of both parties and contained three specific rights and concomitant duties. By the terms of the agreement: (1) Norman was to pay Jennie $120,000 for her home, (2) Norman was required to make a will leaving Jennie one-third of the "residue of his estate", and (3) Jennie's children had the right to her personal belongings if she died prior to Norman. The four annuities and their respective values were listed in a schedule attached to the agreement which set forth all of Norman's assets and liabilities.

On May 20, 1989, Jennie and Norman were married, and Norman executed his will with a provision leaving Jennie one-third of the residue of his estate. Jennie placed her home in joint tenancy with Norman, and on August 11, 1989, certificates of deposit in Norman's name in joint tenancy with his first wife and daughter were changed to joint tenancy with Jennie. On August 14, 1989, Norman died.

The three annuities with Kay Boyle as designated beneficiary are the subject of this appeal. The fourth annuity with Verna still designated as beneficiary became part of the residue of Norman's estate according to its contractual terms and is not at issue.

On November 23, 1989, Jennie died. On November 30, 1989, plaintiffs, Blake G. Berghegen, Brian F. Berghegen, Brent C. Berghegen, were appointed independent coexecutors of Jennie's estate. On December 13, 1989, Kay was appointed successor executor of Norman's estate, replacing Jennie. Plaintiffs filed a complaint alleging breach of the antenuptial agreement and seeking the impression of a constructive trust on the proceeds of all four annuities.

On December 5, 1991, Kay resigned as successor executor and Thomas Wangelin, Jr., was appointed administrator with the will annexed of Norman's estate.

This case was submitted to the trial court on stipulated facts. On May 1, 1992, the trial court granted judgment in favor of the defendants finding no breach of the antenuptial agreement executed by Norman and Jennie.

The sole issue raised on appeal is whether the contract to make a will, as contained in the antenuptial agreement requiring Norman to leave a fraction of the residue of his estate to Jennie, was breached by the passing of the proceeds of the three annuities outside the residue of Norman's estate.

Plaintiffs advance two arguments in support of their contention that the trial court erred in finding that the antenuptial agreement had not been breached. Plaintiffs allege that an implied term of the antenuptial agreement required Norman to deal with his property in good faith. They claim this good faith provision was breached when the proceeds of the three annuities passed outside the residue of Norman's estate. Secondly, plaintiffs argue that the three annuities were part of the "residue" within the meaning of the contract to make a will. This claim is grounded on the assertion that the annuities were Norman's property, they were listed in the antenuptial agreement, and they were not the subject of a specific bequest or devise in Norman's will.

Defendants contend that property passing outside a will does not defeat the purpose of an antenuptial agreement or a contract to make a will in all instances. Property passing outside a will defeats the purpose of an antenuptial agreement or contract to make a will only when the aggrieved party had some legal right in the nonprobate property. Defendants argue that Jennie never had any legal right to the ...


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