Bell v. Rice
| Decision Date | 03 February 1897 |
| Docket Number | 7071 |
| Citation | 70 N.W. 25,50 Neb. 547 |
| Parties | W. Q. BELL, ADMINISTRATOR, v. ANNA RICE ET AL |
| Court | Nebraska Supreme Court |
ERROR from the district court of Lancaster county. Tried below before STRODE, J. Modified.
Affirmed.
Abbott Selleck & Lane, for plaintiff in error:
The estate of a parent is not chargeable for either services rendered by, or for money received from, a child or stepchild, unless it is shown that there was an express promise made by the parent to pay for such services or to refund such money. (Woods v. Land, 30 Mo.App. 176; Barhite's Appeal, 126 Pa. St. 404; Havens v Havens, 3 N.Y.S. 219; Wright v. Senn's Estate, 48 N.W. [Mich.], 545; Harris v Currier, 44 Vt. 468; Allen v. Allen, 60 Mich. 635; O'Kelley v. Faulkner, 17 S.E. [Ga.], 847; Puterbaugh v. Puterbaugh, 34 N.E. [Ind.], 611; Ellis v. Cary, 42 N.W. [Wis.], 252; Smith v. Rogers, 24 Kan. 140; Wells v. Perkins, 43 Wis. 164; Keegan v. Malone, 17 N.W. [Iowa], 461; Tyler v. Burrington, 39 Wis. 376; James v. Gillen, 30 N.E. [Ind.], 7.)
W. E. Stewart and Tibbets Bros. Morey & Ferris, contra.
References: Smith v. Meyers, 19 Mo. 433; Hall v. Hall, 44 N.H. 293; Adams v. Adams, 23 Ind. 50.
In the county court of Lancaster county, sitting as a court of probate, Sophia Mills and Anna Rice each filed a claim against the estate of Thomas H. Rice, deceased. From the judgment of the county court allowing these claims the administrator of the estate refused to appeal, whereupon certain heirs of the estate, in pursuance of the provisions of the statute, appealed from the judgments of the county court to the district court. The two claims were there tried without pleadings. They were tried together to the court without a jury. The district court allowed the claims of Sophia Mills and Anna Rice against the said estate, and said heirs have filed here a petition in error to review the action of the district court.
1. We will first direct our attention to the claim of Sophia Mills. She claimed that the estate was indebted to her in the sum of $ 1,350 for boarding, lodging, and caring for the deceased for the ninety weeks immediately preceding his death, on which claim she admitted that she had been paid $ 862.91 leaving a balance due her of $ 867.19. By the judgment of the district court she was awarded $ 311.95. The evidence shows that Mrs. Mills in 1887 resided with her husband in Waverly, Nebraska; that she was the stepdaughter of the deceased, who at that time resided in Monmouth, Illinois; that in September, 1887, the deceased became an imbecile. The management of his affairs and estate was taken charge of by certain of his friends in Illinois, though no conservator or guardian was appointed for him. About this time, at the suggestion of those having charge of the estate and the affairs of the deceased, Mrs. Mills caused him to be brought to her house in Nebraska, where he remained until he died, some ninety weeks afterwards. During this time Mrs. Mills boarded, lodged, and cared for him, and furnished him medicine and medical attendance. It was necessary, owing to his lack of the use of his mental faculties, to keep a constant watch upon him to prevent his straying away. He had lost power to control and direct the functions of his body and had to be waited upon like an infant; and the evidence shows that the services of Mrs. Mills in the premises were reasonably worth from $ 10 to $ 30 per week. It is urged against the judgment of the district court that its finding is unsupported by sufficient evidence. It is first said that the evidence does not warrant the amount awarded Mrs. Mills. Adding the amount of money received by her from the estate of the deceased during his lifetime to the amount awarded her by the court, we have a total of $ 1,174, which Mrs. Mills has received for her services in the premises. This amount the evidence justifies. But it is said that the evidence does not disclose an express promise on the part of the deceased to pay Mrs. Mills for her services, since she was his stepdaughter and the deceased lived with her in her family; that a family relation existed between them, and that the presumption is that the services rendered by Mrs. Mills were gratuitously rendered because of the relation existing between herself and the deceased. But this evidence does not bring Mrs. Mills' case within the rule that where services are rendered by a child for a parent, the presumption is such services were rendered gratuitously because of the relation existing between the parties. The deceased was not a visitor at the house of Mrs. Mills, nor was he at her house because he had been invited by her to come there and make it his home. If because of the relationship of Mrs. Mills to the deceased the law presumes that the services rendered by her were gratuitously rendered, still this was not a conclusive presumption; and we think that the services of Mrs. Mills were rendered under such circumstances as to overthrow this presumption and justify the application to this case of the general rule that where services are rendered by one party for another, and knowingly accepted by him, the law will imply a promise on his part to pay what such services are reasonably worth. (Smith v. Myers, 19 Mo. 433.) In Koch v. Hebel, 32 Mo.App. 103, a daughter filed a claim against her father's estate for services rendered by her for him in his lifetime. The evidence showed that while the daughter was away from home working for herself her mother was taken ill; that the daughter then returned to the home of her parents, but whether at their request did not appear, and remained with and cared for them until the death of the survivor, and that her father had on certain occasions spoken of compensating her for these services. The court held that because of the family relationship existing between the claimant and the deceased the law presumed that the daughter had rendered the services she did gratuitously, but nevertheless, it was for the jury to say from this evidence whether the services were in fact rendered gratuitously by the daughter, or under such circumstances as to justify the inference of an actual contract of hiring the daughter by the deceased. To the same effect see James v. Gillen, 30 N.E. 7. In Davidson v. Westchester Gas Light Co. 2 N.E. 892, it was held that an implied promise to pay for services would be held to exist where the services were rendered under such circumstances as justified the party rendering them in entertaining reasonable expectation of their payment by the party soliciting the performance. In Adams v. Adams, 23 Ind. 50, it was held that where a child continues with a parent after being of age the presumption is that no wages are to be paid; but a contract to pay a reasonable compensation might be inferred from circumstances tending to rebut such presumption. In O'Kelly v. Faulkner, 17 S.E. 847, it was held that in order to authorize a recovery by a son against the estate of his deceased father for services in the nature of care and attention to the latter while old and infirm, it must affirmatively appear either that the services were rendered under an express contract that the son was to be paid for them, or, the surrounding circumstances must plainly indicate that it was the intention of both parties that compensation should be made and negative the presumption of law that by reason of the family relation the services were gratuitously rendered. In Byers v. Thompson, 66 Ill. 421, a son placed a house on his father's land in the lifetime of the latter. After the father's death the son filed a claim against his estate to recover the value of the house. The court held that the son's right to recover depended upon whether he expected to be paid therefor at the time he placed the house on the farm, and the father expected to pay him, and that this must be determined from all the evidence in the case; and the court expressly held that it was not necessary to enable the son to recover that the...
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