Bonner v. Sledd

• Decision Date: 02 April 1923
• Docket Number: 265
• Citation: 249 S.W. 556,158 Ark. 47
• Parties: BONNER v. SLEDD
• Court: Arkansas Supreme Court

249 S.W. 556

158 Ark. 47

BONNER v. SLEDD

No. 265

Supreme Court of Arkansas

April 2, 1923

Appeal from St. Francis Circuit Court; J. M. Jackson, Judge affirmed.

Judgment affirmed.

C E. Daggett and Walter Garner, for appellant.

Court erred in refusing appellant's requested instructions 1 and 2. Probate court had no jurisdiction of claim for damages for failure to convey land, and circuit court acquired none on appeal. Claim falls in provisions of §§ 97, 100 C. & M. Digest. Probate court without jurisdiction to adjudicate claims of title to property arising between administrator and third persons. 134 Ark. 484; 55 Ark. 222; 111 Ark. 353; 116 Ark. 350; 147 Ark. 7; 149 Ark. 173; 155 Ark. 494. Demand of appellee really unliquidated claim for damages. 69 S.W. (Tex. Civ. App.) 231; 127 N.W. 11. Exception to rule of Walker v. Byers, 14 Ark. 246; 105 Ark. 95. Tract of land involved not in custody of executor. Probate court has no jurisdiction of claims "arising out of tort or for unliquidated damages." If term "demand" as used in § 100, C. & M. Dig., includes all claims "arising in tort or under contract" is it the design to vest the jurisdiction over all claims against estates of deceased persons in probate court or only to require the presentation to the administrations to prevent bar of nonclaim statute, leaving jurisdiction of claims in forum where it properly belongs? Walker v. Byers, supra; 134 Ark. 407, distinguished. Appellee had a valid executory contract for conveyance of forty-acre tract of land, and not a "demand" against the estate. 123 Ark. 191; § 175, C. & M. Digest. Contract to devise the land is within the statute of frauds, and not removed therefrom by alleged performance on part of promisee, in saying which we are not unmindful of Hinkle v. Hinkle, 55 Ark. 583; Naylor v. Shelton, 102 Ark. 30; Ford v. Asbury, 105 Ark. 494; Williams v. Williams, 128 Ark. None of the elements controlling in those cases is present here. See note to Grindling v. Reyhl, 15 L. R. A. (N. S.) 466, and Schoonover v. Schoonover, 38 L. R. A. (N. S.) 752. Our construction recognized in Lay v. Lay, 75 Ark. 526. Action in effect is for specific performance of oral agreement to devise, and rule of evidence should not be different. 36 Cyc. 692. See also generally 25 R. C. L. 587, sees. 191-5; p. 307, sees. 121-2. Chancery court is proper forum. Note to Naylor v. Shelton, Ann. Cas. 1914-A, 399. Contract is within statute of frauds, only question being the sufficiency of performance to remove it and the remedy to enforce it. Hamilton v. Thirston, 48 A. T. L. 709. Contract not admissible, and all in statute of frauds. Taylor v. Thurman, 111 N.W. 229; 25 R. C. L. 704, sec. 347; 25 R. C. L. 586, sec. 190.

Mann & Mann, for appellee.

The claim of appellee was for services rendered and living in the home with and taking care of decedent during closing years of his life, he having failed to make provision for payment thereof in his will, in accordance with the contract. No conveyance of the land agreed to be devised is sought, and it is mentioned only incidentally to determine value of service rendered. No error was committed in refusing appellant's requested instructions, and the cases first cited in his brief have no application here. The probate court only had jurisdiction of the claim. Sec. 93, Crawford & Moses' Digest; Walker v. Byers, 14 Ark. 246; Watkins v. Parker, 97 Ark. 494; Stewart v. Thomason, 94 Ark. 62. This claim not within exceptions as set out in 11 R. C. L. 204. Had right to money compensation, property not being devised. 13 Corpus Juris, 587; 17 C. J. 867; § 93, Crawford & Moses' Digest; 24 C. J. 287; 11 R. C. L. 208. Where no specific amount agreed upon, the reasonable value of the service measures the amount to be allowed. 24 C. J. 288, 277.

OPINION

MCCULLOCH, C. J.

Appellee presented in the probate court of St. Francis County a properly verified claim in the sum of $ 10,000 against appellant's testator, John Young, for personal services alleged to have been rendered by appellee for said testator during the latter's lifetime and up to the date of his death.

There was an appeal from the judgment of the probate court to the circuit court, where, on the trial of the cause, a verdict was rendered by a jury in favor of the appellee for recovery from the estate of the sum of $ 8,000. Judgment was rendered accordingly, and an appeal has been prosecuted to this court.

It is undisputed that John Young was feeble and in ill health for a considerable length of time prior to his death, and that, shortly after the death of his daughter, which occurred about eight months before his own death, appellee moved into the home of John Young and remained with him continuously, except for a short period of time, until he died, and performed certain personal services in taking care of him and his household.

Appellee claims that, before she moved into the home of the deceased, the latter entered into an oral contract with her whereby he agreed that, if she would move to the place and take care of him as long as he lived, he would compensate her for her services by leaving her in his will the sum of $ 5,000 and a certain tract of land described as the "Clark place."

A witness introduced by appellee testified that he was present immediately after the death of the daughter of deceased, when the contract, in substance, stated above was entered into between appellee and deceased; that deceased proposed to appellee that he would compensate her in the manner and to the extent stated above for the services if she would undertake to perform same, and that appellee, after bringing in her husband for a consultation, accepted the offer. There is other testimony corroborating that of the witness just mentioned, and the evidence is abundantly sufficient to sustain the finding of the jury that the contract was entered into, and that appellee performed it according to its terms.

There is evidence to the effect that, on account of a disagreement between appellee and the foster daughter of deceased, and on account of illness of appellee's husband, she removed temporarily from the home of the deceased and remained away for a while, but returned under the same terms as originally agreed upon between her and deceased.

It is not contended that the evidence is insufficient to sustain the finding of the jury upon all the disputed issues of...