This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






In the Matter of the Estate of:


Dagny C. Aure,

a/k/a Dagny C. Adams, Deceased.


Filed March 4, 2003


Harten, Judge


Ramsey County District Court

File No. P7-97-005622


Alf E. Sivertson, Michelle M. Barrette, Sivertson & Barrette, P.A., 1465 Arcade Street, St. Paul, MN 55106 (for appellant Margaret Osteyee)


Thomas H. Gunther, Gunther Law Office, P.A., 700 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondent Lorraine Woods-Foster)


Gene E. Adkins, Hitchcock Law Firm, PLLP, 1465 Arcade Street, St. Paul, MN 55106 (for personal representative of estate, Margaret Osteyee)


            Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N




            Appellant contends that decedent’s last will and testament, leaving decedent’s lakeshore property to her four sisters in equal shares, was superseded by an informal document drawn up by the parties in which respondents consented to appellant owning all decedent’s lakeshore property.  The district court found that the informal document purporting to transfer the property was invalid for lack of consideration.  Because we agree with the district court that the informal document was void for lack of consideration, we affirm.



            Dagny Aure died in June 1997, at age 91.  Her will read in relevant part: “I devise all the residue of my property, real and personal, in equal shares to my four sisters, Myrtle Phillips, Margaret Osteyee, Lorraine Woods-Foster, and Lillian Eng * * * .”  Her real property included a lot on Pike Lake that measured about 50 by 700 feet.  The lot had originally been 50 by 1000 feet, but one of her sisters, appellant Osteyee, had purchased the rear 300 feet. 

Situated on Aure’s property was a cabin in which Osteyee, a schoolteacher, had spent her summers for roughly 50 years.  Another sister, respondent Woods-Foster, also spent vacation time at Aure’s cabin every year.  Both Osteyee and Woods-Foster helped Aure pay property expenses.  Osteyee contributed to the taxes and paid the expenses during the months she was there in the summer; Woods-Foster paid part of the power bill and the telephone bill, and her husband did maintenance work on the property. 

On the day after Aure’s funeral, her four sisters were together and all of them signed an informal document.  The first paragraph, in Woods-Foster’s handwriting, reads: “To whom it may concern: We the undersigned consent to Margaret A. Osteyee own the 50' by 700' property at Pike Lake.”  Under this paragraph are three signatures: Myrtle A. Phillips, Lillian O. Eng, and Lorraine Woods-Foster.  Below the signatures, in Osteyee’s handwriting, appears the sentence: “The use of the cottage on this property will remain as it always has been.”  Under this is the signature of Margaret A. Osteyee.

In May 2001, Osteyee, as personal representative of Aure’s estate, obtained from the district court an uncontested declaration that the informal document was a valid transfer of property.  About two months later, Woods-Foster and Eng successfully moved the district court to vacate the declaration.[1] 

            At a subsequent hearing to determine the validity of the informal document, Woods-Foster testified that Osteyee wrote the first paragraph “and I copied what she had written.”  Woods-Foster also related the sisters’ conversation before the document was drafted:

[Osteyee said] while we are here, I’d like to ask for a piece of property.  And I thought she wanted a strip of property, and there wasn’t much discussion, there was nothing, just that—and I said to Myrtle [Phillips] and to Lillian [Eng], I can see why Margaret [Osteyee] wants more property because her cabin was there in the back and was up on a little hill.


* * * *


* * * [Osteyee] did not explain how much [property she wanted], and I assumed it was just a strip to bring it up to the orchard.  * * *  And I thought Margaret [Osteyee] wanted [her land] to come up to here, which would give her more land if she ever wanted to build * * *. 


Osteyee testified:  “[W]e talked about the property.  I told [Woods-Foster], you know, that I wanted the property because I had—because of what Dagny [Aure] had said I was to have it.” 

Woods-Foster and Osteyee both testified that Osteyee wrote the second sentence of the document voluntarily, without any discussion, but after her sisters had signed below the first paragraph.  When asked what she was giving her sisters in exchange for the property, she said, “At this point nothing.  It was just a statement of truth.”  After Osteyee signed the document, she gave her sisters keys to the cabin.

            Following the hearing, the district court declared the informal document invalid because Osteyee gave no consideration for the property.  Osteyee challenges that decision, arguing that there was consideration and, in the alternative, that the document was a family arrangement and enforceable without consideration.



            “Whether a contract exists is generally an issue for the factfinder.”  Gresser v. Hotzler, 604 N.W.2d 379, 382 (Minn. App. 2000) (citation omitted).  The district court’s findings of fact, whether based on oral or documentary evidence, will not be set aside unless clearly erroneous.  Minn. R. Civ. P. 52.01.  This court will give due regard to the district court’s opportunity to judge the credibility of witnesses.  Id.  If there is reasonable evidence to support the district court’s findings, we will not disturb them.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999). 

1.         Consideration

            Osteyee contends that, by writing, “The use of the cottage on this property will remain as it always has been” after her sisters had signed the document, by giving them the keys, and by assuming some of the financial responsibility for the cottage, she provided consideration for their shares of decedent’s property. 

            Consideration is something of value given in return for a performance or promise of performance that is bargained for; consideration is what distinguishes a contract from a gift.  A promise to do something that one is already legally obligated to do does not constitute consideration.


Deli v. Hasselmo, 542 N.W.2d 649, 656 (Minn. App. 1996) (citations omitted), review denied (Minn. 16 Apr. 1996).  But all accounts of the informal document’s origin acknowledge that neither discussion nor negotiation preceded the sentence that Osteyee added to the informal document:  Osteyee did not add to the informal document or give her sisters the cabin keys until after they had signed the first paragraph.

Woods-Foster, Phillips, and Eng did not give Osteyee their shares of the property in return for the right to use the cabin; as one-fourth owners of the property they were entitled to use the cabin, so they had no need to give anything to acquire that right.  Parties are presumed not to contract to obtain what they already have.  See Gransbury v. Saterbak, 116 Minn. 339, 341, 133 N.W. 851, 852 (1911).

            Osteyee also argues that her assuming all financial liability for the cabin was consideration for her sisters’ shares in it, but she in fact did not assume all financial liability.  Woods-Foster continued to pay some of the bills, and Osteyee paid some of the cabin’s expenses using funds from Aure’s estate, not her own funds.

            We conclude that the district court did not clearly err in finding that the informal document was void for lack of consideration.

2.         Family Arrangement

            Osteyee argues in the alternative that the informal document was a family arrangement for which no pecuniary consideration is necessary.  She relies on Clark v. Clark, 288 N.W.2d 1, 10 (Minn. 1979).  But Clark is distinguishable: the issue there was whether, because the consideration in the family agreement was not pecuniary, equitable relief was lawfully utilized to uphold an oral promise to make a will.  Id. at 11.  Here, the family agreement in question, i.e., the document the sisters signed, involves no consideration, pecuniary or otherwise, and the issue of equitable relief was not considered in the district court.  Moreover, to be enforceable, even family agreements must have the elements of a valid contract.  Swan v. Swan, 308 Minn. 466, 466, 241 N.W.2d 817, 818 (1976).  Consideration is an important element of a contract, and there was no consideration here.  Finally, appellant’s assertion that Minn. Stat. § 524.3-912 provides an independent vehicle for the informal agreement does not furnish an escape from contractual requirements.  That section requires a written contract executed by all who agree to alter interests.

            We conclude that the district court did not err in finding the informal document void for lack of consideration.


[1] Eng and Woods-Foster did not appear at the hearing; their attorney had not received notice of the hearing.  Phillips had died in September 1999; Eng died in October 2001.