Alerding v. Allison

• Decision Date: 08 October 1903
• Docket Number: 4,434
• Citation: 68 N.E. 185,31 Ind.App. 397
• Parties: ALERDING ET AL., EXECUTORS, v. ALLISON
• Court: Indiana Appellate Court

68 N.E. 185

31 Ind.App. 397

ALERDING ET AL., EXECUTORS, v. ALLISON

No. 4,434

Court of Appeals of Indiana

October 8, 1903

From Marion Circuit Court (7,468); Vinson Carter, Special Judge.

Irene Allison filed a claim against the estate of Helen J. Tate deceased, for services. From a judgment for plaintiff defendant appeals.

Reversed.

D. J Hefron, Charles Harrington, D. W. Howe and R. T. Byers, for appellant.

C. W. Smith, J. S. Duncan, H. H. Hornbrook, Albert Smith and Lafayette Perkins, for appellee.

OPINION

ROBY, J.

Appellee's claim was in two paragraphs. The first contained a bill of particulars as follows: The estate of Helen J. Tate to Irene Allison, Dr. To services from February 25, 1882, to December 18, 1889, as companion, housekeeper, cook, and nurse, 406 weeks, at $ 25 per week, $ 10,150. To services from December 18, 1889, to June 26, 1900, as companion, cook, adviser, housekeeper, and nurse, 547 weeks, at $ 10 per week, $ 5,470. Total $ 15,620. In the second, it was substantially averred that the appellee on February 25, 1882, entered the employment of Helen J. Tate under an agreement that if she continued in such employment until such time as she should marry, and faithfully perform her duties thereunder, she should receive by will or otherwise one-half the estate of which Mrs. Tate should die possessed; that if she remained in said employment until Mrs. Tate's death, she should receive by will or otherwise the entire estate; that on December 18, 1889, appellee intending soon to be married and to quit said employment, Mrs. Tate promised that if she would not quit such employment, but continue thereunder until her death, holding herself in readiness from that time on, although married, to do and perform faithfully such services as she was able, which she might be called upon by Mrs. Tate to do, appellee should receive by will or otherwise the entire estate of which Mrs. Tate should die possessed; that appellee should not be required to live with Mrs. Tate, but could dwell elsewhere, and come back and forth to her residence as often as she might be needed or called upon; that, relying on said promises, appellee diligently, in compliance with said agreement, remained continuously in said employment until the 26th day of June, 1900, when Mrs. Tate died. Full performance of said agreement on her part is averred, and that said Helen J. Tate failed to carry out by will or otherwise said agreement on her part, 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 are reasonably worth the sum of $ 25 per week for the 406 weeks from the 25th day of February, 1882, to the 18th day of December, 1889, and $ 10 per week for the 547 weeks from said 18th day of December, 1889, to said 26th day of June, 1900, or $ 15,620 in all, which sum claimant avers is justly due her from said estate and wholly unpaid. Wherefore," etc. Answers to each paragraph of general denial, payment, and statute of limitations. Trial by jury, verdict for appellee assessing her recovery at $ 6,000, with answers to interrogatories. Judgment on verdict. Error assigned is in overruling motion for new trial.

The evidence shows that in November, 1881, appellee, then fifteen years old, went to work in the Tate family as a domestic at $ 3 per week. The Tates then lived on a farm of several hundred acres near Indianapolis, and had in their employment a number of persons, both male and female. In February, 1882, Mrs. Tate asked appellee's mother to let her adopt the girl. The request was refused. The conversation following is relied upon to establish the contract set up. It was testified to by the mother and another daughter. The mother's version was as follows: "What did Mrs. Tate say? A. She said: 'Then I have another question to ask you. Would you be willing to let her remain here as one of the family, and I do for her like I would for my own child and care for her, and clothe her, and give her spending money?' And I says: 'Well, if you take good care of her.' And she said: 'I will. I will take good care of her.' I said: 'She is young, and I have never put anything hard on her, and I do not want you to put anything hard on her.' Q. What else? A. She said another thing--that, 'If she lives with me until she is married I will give her half I have got, and, until my death, I will make her my heir.' Q. If she lived there until she was married she was to give her half of what she had? A. Yes, sir. Q. But if she remained until Mrs. Tate's death then she was to make her her heir? A. Yes, sir. Q. Is that right? A. Yes, sir. And if she died in the meantime she would put her in a nice spot in Crown Hill, and cover her with flowers." Appellee thereafter continued in the family, being treated as a member of it, but doing a great deal of work. On December 18, 1889, appellee left, and took lodging with Mrs. Grube in Indianapolis where she remained until the last of the following November, being married on March 27, 1890. She and her husband have since lived in the city, and have two children. In the fall of 1892 the Tates also moved into the city, locating about two miles from appellee. After this appellee visited them frequently, and it is fairly inferable from the evidence that she gave them attention such as a daughter might have done, but not to have been expected, in view of their various aliments, from one not sustaining such relation. Lizzie Billips, a colored woman who had worked for the Tates some time, testified that she was called into a room at their residence after appellee had left, but before her marriage, and overheard a conversation, which she gives as follows: "A. I heard Mrs. Tate say if Mr. Allison would agree to let her come back--backwards and forwards--as long as she was alive, that she would not give her anything when she got married, but she would give her something at her death. She expected to leave her so that she would not want for anything any more, if he would agree to let her come. Q. Did they agree to it? A. Yes, sir, he did. * * * A. What I told you this morning. Mrs. Tate said that she was willing for Mrs. Allison and Mr. Allison to get married if she would come back and forwards--come to her beck and call; that was Mrs. Tate's words. * * * A. She said she would not give her anything when she was going to get married, but she would give her something at her death." There was evidence of various statements made by Mrs. Tate to the effect that she intended to provide for appellee in her will; that sh...