Buchweiser v. Estate of Laberer

• Decision Date: 07 August 1985
• Docket Number: No. 66769,66769
• Citation: 695 S.W.2d 125
• Parties: Theresa BUCHWEISER, Appellant, v. ESTATE OF Edwin G. LABERER, Eileen C. Burgener, Administratrix, Respondent.
• Court: Missouri Supreme Court

Page 125

695 S.W.2d 125

Theresa BUCHWEISER, Appellant, v. ESTATE OF Edwin G. LABERER, Eileen C. Burgener Administratrix, Respondent.

No. 66769.

Supreme Court of Missouri En Banc.

Aug. 7, 1985.

Coggan R. Mills, Clayton, for appellant.

Alfred J. Rathert, Fenton, for respondent.

RENDLEN, Judge.

Theresa Buchweiser (hereinafter claimant) appeals from the denial of her four count claim against the estate of Edwin G. Laberer who died in January 1981, survived by four children. In February 1983, a handwritten instrument leaving the bulk of his estate to Theresa Buchweiser, his "long trusted friend," was rejected as a will for lack of proper attestation.

The following month claimant filed her claims against the estate. In Claim A, it was alleged that for twenty-seven years from May 1956 to January 1983, she continuously and regularly rendered personal services to decedent including cleaning his house, cooking meals, washing dishes, washing and mending his clothes, and maintaining his home as well as other services. That she was induced to perform these personal services in return for decedent's promise to leave "most of his estate" to her by will she prayed for the value of her services in the amount of $195,000. By Claim B sounding in quantum meruit claimant realleged performance of the personal services, claiming that she was entitled to the reasonable value thereof. In Claim C, claimant alleged that decedent "failed to leave a valid probatable will leaving her all of his estate to her [sic] as agreed on," and prayed judgment for all of the assets owned by decedent at the time of his death less expenses of administration and debts. In Claim D, claimant alleged that certain items of personal property belonging to her were in the house owned by decedent at his death and requested their return.

The administratrix filed answer denying all allegations of the claims and additionally filed a claim for setoff and counterclaim, alleging that "decedent supplied monetary remuneration to claimant by purchasing food and household goods for her, by paying the expenses of vacation trips, by remodeling and refurbishing claimant's house." The administratrix further alleged that when decedent entered the hospital for his last illness, claimant obtained possession of certain property of decedent in the value of $7,500 and requested its return.

Timely appeal was perfected to the Court of Appeals Eastern District where the judgment of the trial court was reversed and the cause remanded for new trial. The principal reason for transfer here was to reexamine and clarify the law concerning "waiver" of the Dead Man's Statute ¹ in cases such as that at bar. We review the cause as though on original appeal. Mo. Const. art. V, § 10; Rule 83.03.

From the record of the contested hearing, the evidence demonstrates that decedent and his wife were divorced in 1949. Sometime in the late 1950s, decedent, whose parents had been born in Germany, met the claimant, who was apparently a German immigrant. Decedent told several people that he wanted to marry claimant but she refused because she was a devout Catholic and he had been divorced. Though decedent and claimant maintained separate households, there was evidence that from 1963 to 1982, claimant performed personal services for decedent including preparing two meals a day, washing and mending his clothes and cleaning his house. Further, there was testimony that he told others that claimant would be well taken care of.

In support of its general denial, setoff and counterclaim the estate presented evidence that decedent performed many valuable services for claimant over the years. He substantially remodeled her living room, bathroom and dining room, provided her transportation, gave her financial advice and assisted her in her financial affairs. The estate also presented evidence challenging claimant's assertion that she provided household cleaning services for the decedent. In addition, testimony was elicited that decedent had promised to take care of his ex-wife and that he would leave money to St. Luke's Hospital because they had saved his life. The rejected handwritten will leaving the bulk of his estate to the claimant was introduced into evidence but when claimant attempted to testify, the estate's objection on the basis of the Dead Man's Statute was sustained.

At the close of claimant's case, the court dismissed Claim D for insufficiency of the evidence. At the close of all the evidence the court entered an order denying claimant's remaining claims as well as the estate's counterclaim. Our scope of review is described in Murphy v. Carron, 536 S.W.2d 30, 32 (Mo. banc 1976).

Claimant first asserts that the trial court erred in ignoring the presumption of law that where no family relationship exists and valuable services are performed by one party for another, there is an implied promise by the recipient to pay the reasonable value for such services. Apparently, she contends she is entitled to judgment on her quantum meruit claim as a matter of law. We do not agree.

It is well settled that where a family relationship does not exist, the law presumes an intent to pay for services rendered. Jaycox v. Brune, 434 S.W.2d 539 (Mo.1968); Steva v. Steva, 332 S.W.2d 924 (Mo.1960). Once a claimant establishes that services of the character here were performed, the estate bears the burden of proof that they were rendered gratuitously, Morris v. Retz, 413 S.W.2d 544, 548-49 (Mo.App.1967); Lauf v. Wiegersen, 17 S.W.2d 369, 371 (Mo.App.1929) and the estate conceded at the hearing that no family relationship existed.

Nevertheless, as between strangers the mere rendition of services will not in every instance entitle one to compensation therefor. Hyde v. Honiter, 175 Mo.App. 583, 158 S.W. 83, 87 (Mo.App.1913). If their personal relationship was such as to have led a reasonable person to believe that the services were rendered gratuitously, it will be presumed that payment therefore was not intended regardless of their value. Taylor v. Currie's Estate, 83 S.W.2d 194, 197 (Mo.App.1935). In Taylor, claimant appealed from a verdict for the estate on his claim for services rendered. Currie and Taylor had been closely associated in business for more than 40 years, each extending favors and services to the other. The court acknowledged the general rule that where no family relationship exists, the law presumes an intent to pay for services rendered and no family relationship existed between them. Instead, they were "bound together by the closest ties of friendship and personal esteem." 83 S.W.2d at 197. The court continued:

The evidence points abundantly to the fact that the services in question were rendered by reason of Taylor's friendship for Currie, and in the course of intimate relations of many years throughout which the one friend consistently and unsparingly endeavored to advance the interests and fortunes of the other. Under such circumstances people do not ordinarily expect pay for any services they may perform, and so it is that the law, which truly reflects the ordinary concept of proper human relations, presumes that services of such character are rendered voluntarily and gratuitously, and casts the burden of proving otherwise upon him who asserts to the contrary.

83 S.W.2d at 197.

The estate's evidence was designed to show that the decedent was a careful man in his financial affairs who promptly paid his bills and would never have received such services without paying for them. That he never mentioned to anyone that he owed money to the claimant for services rendered and in fact, decedent performed valuable services in exchange for the services she rendered. In essence, the estate argued she had been paid, see Poppa v. Poppa, 364 S.W.2d 52 (Mo.App.1962) (brothers traded help on each other's farms), or alternatively that the estate's claim against the claimant for decedent's services offset any claim she might have.

Similarly, claimant asserts the trial court ignored statements made by decedent establishing an implied agreement to pay for the services rendered and also testimony that claimant "would be taken care of." Claimant argues the court failed to properly consider the rejected handwritten will which was introduced into evidence. However, the weight to be given such testimony was for the trier of fact and this record does not entitle claimant to judgment as a matter of law.

Finally claimant argues the trial court erred in not finding there had been a waiver of the Dead Man's Statute by the estate's filing a setoff and counterclaim and the presentation of evidence in support thereof and that, because of such waiver the court erred in not permitting the claimant to testify. We find merit to this contention.

The Dead Man's Act has, for the purpose here, two functional parts. First, in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, the "transactions proviso" renders a surviving party incompetent as a witness in his own favor or in favor of one claiming under him. In this connection the witness is incompetent only as to those matters about which decedent could have testified had he lived. Secondly, where one of the parties to a contract is deceased, and an executor or an administrator is a party to a suit involving such a contract, the portion of the statute referred to as the "administration proviso" makes the surviving party to the contract totally incompetent as a witness except as to matters occurring after probate of the will or appointment of an administrator. Flanagan v. DeLapp, 533 S.W.2d 592, 597 (Mo. banc 1976).

The administratrix objected to claimant testifying on the basis of both the transactions proviso and the administration proviso. The objection was sustained.

A party protected by the Dead Man's Act may, by his affirmative act, waive incompetency of the other party as a witness....