Alerding v. Allison

• Decision Date: 13 March 1908
• Docket Number: 21,182
• Citation: 83 N.E. 1006,170 Ind. 252
• Parties: Alerding et al., Executors, v. Allison
• Court: Indiana Supreme Court

83 N.E. 1006

170 Ind. 252

Alerding et al., Executors, v. Allison

No. 21,182

Supreme Court of Indiana

March 13, 1908

Motion to Modify Mandate Withdrawn April 6, 1908.

From Hamilton Circuit Court; Ira W. Christian, Judge.

Action by Irene Allison against Herman Alerding and another, as executors of the will of Helen J. Tate, deceased. From a judgment for plaintiff, defendant appeals. Appealed from Appellate Court under subd. 3, § 1394 Burns 1908, Acts 1901, p. 565, § 10.

Affirmed.

George H. Batchelor, Hefron & Harrington and Shirts &amp Fertig, for appellant.

Smith Duncan, Hornbrook & Smith, William S. Christian and LaFayette Perkins, for appellee.

OPINION

Hadley, J.

The claimant, in November, 1881, at the age of fifteen years, was employed by Helen J. Tate, appellant's testatrix, as a domestic, at the wage of $ 3 per week. In February following an agreement was entered into between the claimant and her mother on one side, and Mrs. Tate on the other, under which the claimant continued to reside with Mrs. Tate until December, 1889, when the claimant was married and went to live with her husband. After her marriage the claimant made frequent and prolonged visits to the Tate home, and continued to make such visits, and to render important and valuable services to Mrs. Tate, until the latter's death, which occurred June 26, 1900. Mrs. Tate died testate. Her will was executed on November 18, 1898, contained thirty-three items, or bequests, the fifteenth and twenty-sixth of which are as follows:

"Item 15. I give and bequeath to Mrs. Irene Allison, wife of James Allison, all the furniture, carpets, pictures, ornaments, utensils, and other household articles, of every description, in my residence, and not in this will specifically bequeathed to other legatees."

"Item 26. I give and bequeath to Mrs. Irene Allison, wife of the same mentioned in item fifteen of this will the sum of $ 500."

Fifteen days after the death of the testatrix, to wit, July 7, 1900, the executors delivered to Mrs. Allison, the claimant, all the personal property bequeathed to her by item fifteen, and she executed to them a receipt and refunding bond therefor as follows:

"Received of Herman Alerding and Daniel Wait Howe, executors of the last will of Helen J. Tate, deceased, the articles specified in item fifteen of said will, which reads as follows, to wit:

'Item 15. I give and bequeath to Irene Allison, wife of James Allison, all the furniture, carpets, pictures, ornaments, utensils, and other household articles, of every description, in my residence, and not in this will specifically bequeathed to other legatees.'

Said articles being described in the inventory and appraisement filed by said executors, as follows:

[Here follows a list of fifty-three articles, as described and appraised in the inventory and appraisement.]

The above-mentioned articles are delivered by said executors and received by the undersigned on the express condition that they are to be returned to said executors on demand at any time before the final settlement of said estate, and I hereby bind myself in the penal sum of $ ___ to return said articles on demand to said executors.

Irene M. Allison.

July, 1900.

I hereby acknowledge myself surety for the above-named Irene Allison, for the performance by her of the above-recited obligation.

J. M. Allison.

H. W. Tutewiler."

On June 11, 1901, appellee filed her claim in two paragraphs against the estate, which claim was as follows:

"First Paragraph. The claimant, Irene Allison, alleges that she has a just claim against the estate of Helen J. Tate, deceased, for services rendered by said claimant to said Helen J. Tate in her lifetime, and says that claimant has been and was continuously in the employ of Helen J. Tate at her special instance and request, from, to wit, February 25, 1882, until the death of Helen J. Tate, on June 26, 1900. The services rendered by said claimant under said employment being of the reasonable value of $ 25 per week from February 25, 1882, to December 18, 1889, and of $ 10 per week from said December 18, 1889, to June 26, 1900, or $ 15,620 in all, a bill of particulars of which is as follows:

The estate of Helen J. Tate, deceased, to Irene Allison, Dr.,

To services from February 25, 1882, to December,

1889, as companion, housekeeper, nurse,

and cook, 406 weeks, at $ 25 per week

$ 10,150

To services from December 18, 1889, to June 26,

1900, as companion, housekeeper, adviser,

cook, and nurse, 547 weeks, at $ 10 per week

$ 5,470

Total

$ 15,620

Claimant further says that the estate of said Helen J. Tate is not entitled to any credits or deductions from said sum, and that said sum of $ 15,620 owing to claimant from said estate is long past due and unpaid.

Second Paragraph. For a further and second paragraph against the estate of said Helen J. Tate, deceased, claimant says that on, to wit, February 25, 1882, claimant while only fifteen years of age, entered the employ of Helen J. Tate, under an agreement that if she should continue in such employ until such time as she should marry, and faithfully do and perform her duties thereunder, she should receive, by will or otherwise, one-half of the estate of which said Helen J. Tate should die possessed, or if claimant would continue such employment until said Helen J. Tate should die, and faithfully and diligently do and perform her duties thereunder, claimant should at the death of said Helen J. Tate receive, by will or otherwise, the entire estate of which said Helen J. Tate should die possessed; that on, to wit, December 18, 1889, claimant, intending soon to be married, was about to quit said employment; that said Helen J. Tate was very much attached to claimant, and promised that if claimant would not quit said employment, but continue thereunder until said Helen J. Tate should die, by holding herself in readiness from that time on until the death of said Helen J. Tate, even though married, to do and perform faithfully and diligently such services as she was able, although residing elsewhere, and which she might be called upon by said Helen J. Tate to do and perform, claimant would receive, by will or otherwise, the entire estate of which said Helen J. Tate should die possessed, and claimant would not be required to do and perform as much work as she had done theretofore, or to live at the residence of said Helen J. Tate, but that claimant could dwell elsewhere and come back and forth to the residence of said Helen J. Tate when and as often as claimant might be needed or called upon by said Helen J. Tate to render services under said employment; that, relying upon said agreement and promise, claimant faithfully and diligently, and in all things in compliance with said agreement and promise, remained continuously in said employment from, to wit, said February 25, 1882, until June 26, 1900, when said Helen J. Tate died; that from, to wit, said February 25, 1882, until December 18, 1889, claimant resided in the same house with said Helen J. Tate, and exercised general supervision over the household affairs, and faithfully and diligently performed, under said employment, the services of a companion, housekeeper, nurse and cook, and from said December 18, 1889, to said June 26, 1900, when said employment ended, claimant, although not residing in the same house with said Helen J. Tate, faithfully and diligently performed, under said employment, the services of a companion, adviser, housekeeper, nurse, and cook, as often as and whenever needed and called upon by said Helen J. Tate, in all things in compliance with and pursuant to the agreement and promise aforesaid; that said Helen J. Tate failed to carry out, by will or otherwise, her part of the agreement and promise aforesaid, but on the contrary devised and bequeathed most of her property, both real and personal, to other parties, except $ 500 and part of the household goods. Claimant further says that the aforesaid services rendered by her to said Helen J. Tate, under said employment, were reasonably worth the sum of $ 25 per week for the 406 weeks from February 25, 1882, to December 18, 1889, and $ 10 per week for the 547 weeks from December 18, 1889, to June 26, 1900, or $ 15,620 in all, which sum claimant avers is justly due her from said estate, and wholly unpaid."

The action was originally brought and tried in the Marion Circuit Court, resulting in a judgment and verdict in favor of appellee for $ 6,000. On appeal to the Appellate Court ( Alerding v. Allison [1903], 31 Ind.App 397, 68 N.E. 185) the judgment was reversed and the cause remanded for a new trial. The venue was changed to the Hamilton Circuit Court, and in the latter court the cause was placed at issue and tried by a jury, resulting in a verdict for claimant for $ 8,436, and answers to divers interrogatories. A motion for judgment upon such answers and for a new trial having been overruled, judgment was rendered upon the verdict, from which the executors appeal and assign error on all adverse rulings. On the first appeal the Appellate Court held in effect: (1) That the two paragraphs of complaint were founded upon the same cause of action; (2) that the services rendered under the agreement set up in the second paragraph were to be recompensed by a testamentary provision; (3) that the testamentary provision made for the claimant was intended by the testatrix to be in full of all claims; (4) that the claimant by her unexplained receipt of the household goods bequeathed to her by item fifteen of the will must be held to have elected to accept the legacy in satisfaction of her claim; (5) that under the issues as formed the executors had the right to raise the question of estoppel without plea. Whether these rulings of the...