In re Herdman's Estate

• Decision Date: 25 November 1941
• Citation: 167 Or. 527,119 P.2d 277
• Parties: IN RE HERDMAN'S ESTATE SIGMAN <I>v.</I> HERDMAN
• Court: Oregon Supreme Court

167 Or. 527

119 P.2d 277

IN RE HERDMAN'S ESTATE

SIGMAN v. HERDMAN

Supreme Court of Oregon.

Argued September 23, 1941.

Reversed November 25, 1941.

Trial — Nonsuit — Demurrer

1. In determining a motion for judgment of involuntary nonsuit, evidence given for plaintiff must be taken to be true, together with every inference of fact which the jury might justly draw therefrom, since a motion for nonsuit admits not only all that the evidence proves but all that it tends to prove, regardless of whether case is to be tried by a jury or before the court without a jury.

Executors and administrators — Claim against estate

2. Where executrix moved for judgment of involuntary nonsuit in proceeding to establish claim against decedent's estate, it was not the function of probate court to pass upon the weight of the evidence, which must be taken as true, together with every inference of fact which jury might legally draw therefrom, since such proceeding was in the nature of an "action at law".

Executors and administrators — Nonsuit — Evidence

3. On appeal from order rejecting claim against decedent's estate, where executrix had moved for nonsuit, supreme court treated lower court's order as a judgment of involuntary nonsuit, notwithstanding order rejecting claim recited that it had not been proved by sufficient evidence.

Executors and administrators — Claim against estate — Corroboration

4. In proceeding to establish claim against decedent's estate for services rendered as housekeeper, corroborating testimony by decedent's brother with respect to nature and extent of services rendered and decedent's promise to compensate therefor was sufficient to meet requirements of statute that no claim which has been rejected by executor or administrator shall be allowed except upon some competent satisfactory evidence other than testimony of claimant.

Executors and administrators — Claim against estate

5. The fact that claimant was a sister of deceased widower, against whose estate she sought to establish claim for services rendered as a housekeeper on the basis of an implied promise to compensate therefor, would not give rise to presumption that services were rendered gratuitously, unless it appeared that, at the time services were rendered, claimant was living as a member of the family of decedent.

Executors and administrators — Services — Jury question

6. In proceeding on claim against deceased widower's estate for services as housekeeper rendered over a period of more than five years by decedent's sister, who for that purpose left the home of her daughter in another state at decedent's request, whether claimant lived in decedent's house as a member of the family so as to raise presumption that services were rendered gratuitously was for the jury.

Executors and administrators — Personal services — Compensation

7. In proceeding on claim against decedent's estate, although claim was based on an implied promise, it was competent for claimant to show an express agreement that she was to be compensated for her services, since any evidence was competent which would warrant inference that services were rendered with an intention of charging therefor and a justifiable expectation of payment, and were accepted by decedent with a knowledge, actual or constructive, of such expectation.

Executors and administrators — Claim against estate

8. In proceeding on claim against decedent's estate for services rendered as housekeeper during a period of more than five years following death of decedent's wife until his remarriage, claimant's failure to assert her claim until after decedent's death, although weighing heavily against her, was not conclusive on the question of whether services were rendered gratuitously or with the expectation on both sides that claimant should be compensated therefor.

Executors and administrators — Claim against estate

9. In proceeding on claim against decedent's estate, where claimant made out a case sufficient to be submitted to jury, lower court erred in not denying motion by executrix for judgment of involuntary nonsuit.

                  See 21 Am. Jur. 598; 28 R.C.L. 683 (8 Perm. Supp., 6184)
                  24 C.J., Executors and Administrators, § 1124
                

Before KELLY, Chief Justice, and BAILEY, LUSK, RAND and BRAND, Associate Justices.

Appeal from Circuit Court, Multnomah County.

GEORGE TAZWELL, Judge.

Proceeding in the matter of the estate of Fred M. Herdman, deceased, by Elizabeth M. Sigman against Agnes Thompson Herdman, executrix of the estate of Fred M. Herdman, deceased, to establish a claim against estate for the reasonable value of services as a housekeeper rendered the decedent. From a judgment rejecting her claim, plaintiff appeals.

REVERSED.

Fred W. Bronn and William G. Dunlap, both of Portland, for appellant.

D.P. Price, of Portland (Joe P. Price, of Portland, on the brief), for respondent.

LUSK, J.

This is an appeal from a judgment of the circuit court, department of probate, rejecting the claim of Elizabeth M. Sigman for the reasonable value of services as a housekeeper against the estate of Fred M. Herdman, deceased.

The decedent was a resident of Portland. The plaintiff, Mrs. Sigman, was his sister. On June 15, 1933, the decedent's wife died suddenly, and, in response to his request by telegram, Mrs. Sigman came to Portland from her home in Los Angeles and thereafter until October, 1938, when Herdman remarried, served him as his housekeeper. She testified that her brother many times promised to pay her for these services. J.A. Herdman, brother of the deceased, who lived with him during the period in question, corroborated the claimant both as to the nature and extent of the services rendered and the decedent's promise to compensate for them. There was also expert testimony tending to show the reasonable value of the services.

At the conclusion of the plaintiff's case the defendant moved for a judgment of involuntary nonsuit. The court thereupon rendered an oral decision indicating disbelief in the claimant's testimony, and subsequently entered an order which did not in terms allow the defendant's motion but recited "that claimant failed to prove her claim against said estate by sufficient evidence" and ordered that the claim "be and the same is hereby rejected".

1-3. This proceeding is in the nature of an action at law. Turner v. Schlegel, 163 Or. 367, 97 P. (2d) 723. A motion for a nonsuit admits not only all that the evidence proves but all that it tends to prove. The evidence given for the plaintiff must be taken to be true, together with every inference of fact which the jury might legally draw from it. Lamm v. Silver Falls Timber Co., 133 Or. 468, 523, 277 P. 91, 286 P. 527, 291 P. 375; Farrin v. State Industrial Accident Commission, 104 Or. 452, 461, 205 P. 984; Herrick v. Barzee, 96 Or. 357, 371, 190 P. 141; Brown v. Oregon Lumber Co., 24 Or. 315, 317, 33 P. 557. The rule is no different when the trial is before the court without a jury. 64 C.J. Trial 1213, § 1028. Hence, while a trier of the facts might reasonably say, as the court did, that it is not probable that one having a claim for money against another would wait until after the alleged debtor's death before asserting the claim, it was not the function of the court to weigh the evidence at that stage of the case, but to pass on the motion for nonsuit in the light of the rules which have been...