Avery v. Moore

• Decision Date: 14 May 1890
• Citation: 24 N.E. 606,133 Ill. 74
• Parties: AVERY v. MOORE.
• Court: Illinois Supreme Court

133 Ill. 74

24 N.E. 606

AVERY

v.MOORE.¹

Supreme Court of Illinois.

May 14, 1890.

The following is the opinion of UPTON, J., referred to in the opinion:

‘The controversy in this proceeding grows out of a claim for $1,537.00, filed by Elizabeth M. Moore, appellee, against the estate of George Gilson, deceased, for services rendered him in his life-time. It appears from the record before us that George Gilson, deceased, resided in Boone county, Ills., of which county he was an early settler. Industrious and thrifty in his habits in early life, he had accumulated property amounting in value at the time of his death to about $8,000, consisting of a block of land in Belvidere, in Boone county, upon which was a house, barn, and outbuildings, in value about $1,600; with personal estate, mostly notes and mortgages, in value $6,500. He died October 26, 1886, upwards of 80 years of age, leaving sons and daughters surviving him. He suffered for many years preceding his death with chronic rheumatism, complicated with trouble in his kidneys and bowels, incident to the decay and torpor of extreme old age, to such an extent that at times he was wholly unable to control his person in the calls of nature. His wife died several years preceding his own demise. After the death of his wife, and before her marriage, the claimant (appellee, who was his granddaughter) kept house for him some years at his homestead in Belvidere. About 1878 she was married to John A. Moore, and with her husband removed to the state of Kansas to reside. George Gilson remained alone at his homestead in Belvidere after the claimant's marriage and removal, caring for himself as best he could, aided and assisted from time to time in his necessities, through the kindness of his neighbors, until August, 1881, at which time he went to Kansas, to the claimant's place of residence, for the avowed and oft-repeated intent and purpose of making some arrangement by which the claimant and her husband would return to the homestead of Gilson, in Belvidere, live with and take care of him. It further appears from the repeated statements of Gilson immediately preceding and quite soon after his return from Kansas as above stated, that he had contracted and agreed with the claimant that, if she would return to his home in Belvidere with her family, live with and care for him, he would give her his homestead, of the value of $1,600 or $1,800, or otherwise make her suitable and adequate compensation therefor; in fulfillment of which he (Gilson) soon after made his will, executed in due form of law, therein devising to the claimant this homestead property as agreed. On the 26th of October, 1881, appellee (claimant) and her family, after breaking up their home in Kansas, returned to the homestead and residence of her grandfather George Gilson, commenced service under the agreement, and continued that service in a reasonably acceptable manner, as she had undertaken to do, until the 28th day of March, 1886, at which last-named time George Gilson, then sick, unable to walk, enfeebled in mind and body, was taken and carried from his home, and from complainant's care, without her request or consent, by the direction or procurement of his children, or some one of them, to the residence of a Mrs. Eliza Leach, a married daughter of George Gilson, residing in Belvidere, where he died in October thereafter. After Gilson was taken from the claimant's custody and care, he was for some reason induced to and did revoke the will before mentioned, in which he had devised the homestead to this claimant, and executed a deed of conveyance thereof to Mrs. Eliza Leach, and also executed a new will, by which he bequeathed to the said Eliza Leach the sum of $1,000 in money, and to her daughter Bessie Leach $500, and the entire residue and remainder of his estate to his children and certain of his grandchildren, making no provision whatever for the claimant, appellee. In this state of the facts the appellee filed her claim, in the administration of Gilson's estate, for 1,537 days' services, being for the time she actually cared for Gilson under the agreement, at one dollar per day, and verified her claim by her oath. By agreement, the proceedings, so commenced in the county court sitting in probate, were transferred to the circuit court of Boone county, wherein a trial was had before a jury, and a verdict rendered for the appellee, claimant, for the full amount of her claim, $1,537. A motion for a new trial was made and overruled, and judgment rendered on the verdict, from which the administrator prosecuted this appeal.

‘The jury in the trial court specially found that claimant, by and in pursuance of an express verbal contract made with George Gilson in Kansas in August, 1881, lived with and cared for him pursuant thereto 1,537 days, and that such service and care was worth $1,537, or $1 per day; and that during the time of the performance of such service the family of the claimant and herself were supported and provided with provisions and fuel by her husband, John A. Moore. That the time of such service began on the 26th day of October, 1881, and continued until the 23d day of March, 1886, with the exception of 10 weeks, being for a period of 4 years, 2 months and 17 days.

‘It is insisted by appellant that the trial court excluded competent evidence in the statements claimed to have been made by deceased George Gilson in his life-time, after he was taken from appellee, to the effect that he was not well-treated while with appellee and under her care. It was quite proper, on the part of the trial court, to reject such offer, and the ruling in that regard was not erroneous. It could not be competent on the ground of res gestae, as is claimed, nor upon any other principle that occurs to us. Neither was it competent to show declarations of Gilson while living with the appellee, and not in her presence or hearing, as to moneys paid by or to Gilson or others, or how the same was used. Self-serving statements of George Gilson in his life-time, verbal or written, in the absence of appellee, which did not in fact accompany any act of Gilson competent to be shown in evidence, were no part of the res gestae. In order that verbal statements accompanying an act may be competent as a part of the res gestae, manifestly the act itself must be material to the issue involved. One party cannot give his declarations in his own favor in the absence of the other party, as a general rule; one of the exceptions being that when the declarations offered give character to an act proper to be given in evidence, and accompany that act, they are admissible as the res gestae. Weyrich v. People, 89 Ill. 96, and cases there cited; 1 Greenl. Ev. c. 5.

‘It would seem too clear to require discussion that, if the decedent was liable to appellee for her labor and care bestowed upon him, he could not escape liability, nor exonerate his estate from payment therefor, by any recital in any paper the decedent or his attorneys might draft, or by any verbal statements made to third persons in the absence of appellee, and which were self-serving in effect, and that more especially when made after such service was performed. Neither was it competent, in our judgment, to show that his sons and daughters offered George Gilson a home with them, if such was the fact. Gilson was not bound to accept of such offer if made; nor would that fact, if fact it was, preclude decedent from his right to reside in his own homestead, or to employ such persons to care for him as he chose, or in the least degree, in a legal sense, tend to maintain or defeat claimant's right of recovery in this proceeding. It is enough that such sons and daughters did not care for or maintain their father during any period of the time here claimed; what they offered to do was of no consequence. It was his privilege to select his housekeeper and his nurse. The will and conveyance to Mrs. Leach we think were competent evidence, and...