provide for her by creating a trust creating a a trust by by will or trusted upon his ear the trust will be created into which his farmland will be will be transferred and from which she will retain receive fifty percent of income from the trust until the earlier of the following of this remarriage or death by a patient or until the youngest child reaches the age of eighteen incidentally they only ever had one child so that's the those are the first of the primarily agreement and makes the case it would be the scenes performance of that condition with respect to a life insurance policy a condition preceding and it also cites specifically paragraph seven which specifically sets forth  provided that upon his death she could receive fifty percent of the income from all of his assets until those same exact forward events were to occur what with mining differences so it's our position that percent of income and still the earlier of those four events and the court but the court found that because it was in a special trust specifically just for the farm when and that included more assets then  bargained in the camero agreement that somehow that would impose additional duties on her that she didn't bargain for and as it is he didn't fulfill its obligation we take issue with that because we feel that if anything the decision over performed in this regard by allowing her to drop from the will going to draw more and assets fifty percent from all of the income not just off the form the court saw that as a potential accounting nightmare for her and that she didn't bargain we disagree first of all the accounting nightmare if any would it contemplate at least the primarily agreement contemplated them at potentially having more children it said that she could receive the fifty percent of income until the earlier of those tour events but in the american dream and it's said that she it said that the youngest of their children reaches the age of eighteen the order issue as you'll see the court threw pretty much every inference an assumption against the nonmoving party rather than in favor of a non party and so and so every inference an assumption in favor of of them as the party and we think that if a court were to make assumptions who found that you know if the if if they actually had more children that is seen could have updated as a statement and maybe was waiting for that to happen before he took that rather expensive so that since they in fact never had another child we think it's that distinction without difference the poor also took issue with court also took issue with so the best that's the paragraph nine essentially we feel that he by his existing will in two thousand and three had already satisfied all of his obligations in paragraph night with respect to the farmland that was to be transferred the trust fifty percent of the income going to her as we've indicated she was going to get more money by oh well then from the prem agreement and that any of these other minor differences are not sufficient to render the surrender the entire thing on in force the court also found that paragraph four misses where we really t if and i think it's worth pointing out that at no time has my client has the executor to approach as the future trustee or no one has ever tried the picture from the house so we also take a little issue with us but there is no case in controversy over paragraph where i think we i can't stand here represent to you that he actually did modify his will or that the will mirrors the language from the camaro agreement with regard with respect erica for it doesn't it's not someone came in took a copy and paste and  that's exactly my point i feel that if someone actually tried to victor whether it be my client until the child was of age and then yes potentially her own daughter who is assumed who will inherit all of this when she reaches that certain age if someone tries to kick perhaps she could that it happened but what i'm arguing is that there was really no dispute and if there were to be disputed someone were to kick around then i think she had other remedies than to set aside the whole document but my main point is that her whether or not he formed paragraph four is immaterial clear and i'm pretty sure that the document only gave her right to fifty percent of his retirement accounts but he actually has she left most of it to or so she's already received and actually retained so that's another fair point by them like grace that because in addition to seeking thinking that he made his obligations in fact he died but eight years after this agreement signed and they got married so i also feel that are that they were able to retain and able to retain but they have since retained all of these assets and they are seeking the law on the other two i don't i certainly don't think that we can go back in time and have mexico to do a new will or trust to strictly fill the promises in there but the benefit of the bargain in paragraph court only was i suppose that not an ex change get we never we never got that far in getting back and what does terms initially asking does this court have the authority to order the executive order to something that's a different posture than what you're suggesting that you think who exact poor might be willing to do that if the offer was not made in the trial or what we're what we have is on this particular issue of determining whether we have the authority to order the exact route or to lose we literally didn't get that far because they deal with the motion to sue to protest on the pleadings followed by a motion to stay discovery we were limited to what was on paper and unfortunately the court granted it based only ones on paper it made the court made a specific a single provision of that contract the contract itself had had a number of obligations on both parties both as to post mortem if you will or afford his wife a home for life the marital home for as long as she chose to be for life a pleading was filed and it because it was a contract action there is an element of contract law there is some confusion record for the term mixing about ition priest see which were specific to that paragraph nothing but conditions obligations of contract some because the rule that i don't think there's any ever been disputed is the law is that the plaintiff seeking to enforce a contract or recover damages  so you do not want enforcement of the contract you that would be your client's position noir they're trying to slip he want the benefits of paragraph six and seven in the contract getting in contract all to the conclusion that i know you want me to reach him is that your client is the benefits of paragraph six and seven under contract if we rule in your favor all those questions that i have in my mind they just try to articulate to you won't make any difference what like well if you give me if we will for you you most of them were never pled it was never any suggestion that this provision meant anything other than what it said it was never any suggestion that  for some reason some elements are equitable a fancy or something like that to the posher or it getting back to your question is she has that tested by all the rules governing those kinds of actions the high degree of all those things but that contract action was charged not that in the sense of  ok so if it's out in the record and we can consider this then addressing that concern yes the state has already comply with of of of the paragraph six and seven  well this is the having your cake and eating it too dilemma this is the the the the everybody argument i believe that just turner was advancing then your client of six of determination that the entire agreement is on him for civil given nonperformance and paragraph or and  what whether or not that actually was a material or what the what are your thoughts on that we go again your honor this was a judge a motion for judgment pleadings that was file entire agreement on forcible yeah sure because it's an element of the contract action so it has to be plenty this this complaint was never meant all the court had was the complaint which made no such allegation documents which established that before an obligation the presumption that all obligations in motion for judgment on the pleadings was pending gave any indication of or assertion of any of that only in hindsight excuse for that or for that was never done in ten months wasn't done after the words so that now we're asked to review we're not talking about resolving these issues because they were these other issue corporator establish that he didn't perform an obligation of significance to mrs make up they elected to go that and because it's the difference between a motion to dismiss and in there's a judge because the motion itself puts the party the plaintiffs on notice that ok there's these issues that that would come it would be with regard to the separate issue of these specific conditions preceding because basically the argument that they didn't include that is that based on just speculation and that's why i tried to focus on what the judge the trial judge had before all of these things would have been raised they or instead have to come up here and basically ask this court to step beyond and apply an equitable interpretation of things  and all of these other pleadings and as the court references and its rather lengthy order cites not didn't believe the positions that we raise and of course he disregards them but i think the record clearly shows that we raised all of these concerns defenses to the paragraph performance with respect paragraph four in the trial court level so you have plenty to review on that and have certainly most certainly was raised there i think it's also important to not lose sight of the fact that and there was also talk of burdens and clearly throughout as we argue in our brief there is this effort to shift the burden to us now what is this this is a probate state where the where the widow is trying to do something that we contend she's not legally able to do and issue i mean our basic position is that paragraph nine does not include any reference to paragraph four they were sensually seeking to and then the merrill agreement after the husband's death to add a performance of an obligation in a different part of the agreement we feel that his court to do obviously is reverse remand this court you're the sport obviously has the option i think by the thoroughly examining and analyzing everything including whether or not she can renounce war you could simply reverse the court's order a motion for judgment on the paragraph or was material breach and even if it was or not whether that has anything to do with the bargain for exchanging paragraph nine which brought about the waiver of her right to renounce ok thanks to both of