Application by Harold R. Cox, administrator with the will annexed of the estate of Alva G. Martin, deceased, to set aside a survivorship proceeding instituted by Emma Martin, widow of the deceased, with respect to two land contracts, and for permission to collect the payments due under such contracts and make distribution thereof in accordance with the terms of the last will of deceased. Upon this application the county court issued an order requiring Emma Martin to show cause why the relief prayed for in such application should not be granted.
Alva G. Martin, a resident of the city of Milwaukee, died testate on March 18, 1962. On December 5, 1962, his widow, Emma Martin, instituted survivorship proceedings in which she sought a certificate terminating an alleged joint tenancy between her and the deceased in two certain land contracts. During the deceased's lifetime he acquired sole title to two tracts of nonhomestead land in the city of Milwaukee. On July 11 and July 22, 1959, respectively, he entered into land contracts for the sale of these two parcels. Both contracts were drafted on printed Form 36. In the blank space provided in each for the naming of the vendor was typed "Alva G. Martin, and Emma Martin, his wife." After their names appear the printed words of Form 36, "herein called Vendor, whether one or more." In the clause of each contract relating to the payment of purchase price the purchasers covenanted to make the specified payments "to the vendor at Milwaukee, Wisconsin," the first three quoted words being printed and the last three being typed. Form 36 also contains as part of the printed matter a provision that, "the wife of the Vendor for a valuable consideration, joins herein to bar her dower and homestead rights and agrees to join in the execution of the deed to be made in fulfillment hereof." Alva G. Martin and Emma Martin each subscribed and acknowledged both land contracts.
At the hearing on the administrator's application the two land contracts were marked as exhibits and received in evidence. The record does not disclose, however, that any witnesses were examined at such hearing. Thereafter, the county court filed a memorandum decision in which it determined that the two land contracts did not create a joint tenancy in the proceeds of the sales but that the land contracts must be listed in the inventory in the estate of Alva G. Martin, deceased, as assets of his estate.
Under date of August 20, 1963, the county court entered an order which, among other things: (1) Set aside the survivorship proceedings instituted by Emma Martin with respect to the two land contracts; and (2) ordered that these land contracts be listed as assets of the estate of the deceased in an inventory to be filed by the administrator. Emma Martin has appealed from this order.
CURRIE, C. J.
The sole issue on this appeal is whether the two land contracts constitute assets in the estate of the deceased, or whether a joint tenancy had been created therein in Alva G. Martin and Emma Martin, his wife, so that the latter became sole owner by right of survivorship upon the death of her husband.
This case is ruled by Estate of Fischer, ante, p. 637, 126 N.W.2d 596, argued and decided at this assignment.
An ambiguity exists, with respect to both contracts, between the payment clause whereby the purchasers were obligated to make payment "to the vendor," and the clause that stated that the wife of the vendor joined in the contract for the purpose of barring dower. By inserting the names of both husband and wife in the opening clause of the contract naming the vendor, the word "vendor" in the payment clause included both husband and wife. This ambiguity, however, is resolved by invoking the rule enunciated in Estate of Fischer, supra, that there is a presumption that the wife of a vendor, who joins in a land contract for the sale of nonhomestead land owned by the husband alone, joins therein solely for the purpose of releasing her inchoate right of dower, absent a showing to the contrary.
The record here is barren of any evidence which would tend to rebut this presumption. In fact it does not disclose that appellant Emma Martin ever requested an opportunity to present such evidence. Appellant's position on this appeal has been that because the payment clause of the contracts had the effect of naming both Alva G. Martin and Emma Martin, his wife, as payees, it follows as a matter of law that a joint tenancy was created. This position is rendered untenable by our opinion in Estate of Fischer, supra. Therefore, the order appealed from must be affirmed.
In passing, we deem it advisable to point out to the members of the legal profession, who have occasion to use Form 36, that in a situation where the wife of the vendor is joining in the execution thereof solely to release her dower interest, her name should not be inserted in the body of the instrument as a vendor, as all that is necessary is that she subscribe and acknowledge the contract. This would eliminate the ambiguity that precipitated the instant controversy.
By the Court. — Order affirmed.