Cowell v. Roberts' Ex'r

• Decision Date: 31 October 1883
• Citation: 79 Mo. 218
• Parties: COWELL et al., Appellants, v. ROBERTS' EXECUTOR.
• Court: Missouri Supreme Court

79 Mo. 218

COWELL et al., Appellants,

v.ROBERTS' EXECUTOR.

Supreme Court of Missouri.

October Term, 1883.

Appeal from Lafayette Circuit Court.--HON. WM. T. WOOD, Judge.

AFFIRMED.

Burden & Son for appellants.

Wallace & Chiles for respondent.

MARTIN, C.

This action was commenced in the probate court of Lafayette county in November, 1877, for the purpose of obtaining allowance of a demand against the estate of Jesse Roberts, deceased, for services, work and labor of Susan E. Cowell, as nurse, servant and housekeeper of said Roberts. It is alleged in the statement of the demand that said Roberts became indebted to her for said services and that he undertook and promised to pay her the amounts claimed, which in the aggregate reach the sum of $1,000. The trial in the probate court resulted in a judgment for the defendant, from which the plaintiffs appealed to the circuit court, where judgment again was rendered for the defendant by the court, the parties having waived a jury. From this last judgment the plaintiffs have appealed to this court. The evidence is voluminous and the instructions of law numerous; and it would be impossible as well as unnecessary to state them in detail.

It appears from the evidence in the case that Susan E. Howard, who is now Susan E. Cowell by virtue of her marriage, lost her mother by death in Daviess county, when she was only eighteen months old. She had a sister by the name of Jennie, a little older than herself, and they were both left by the death of their mother in 1854 in the care and custody of their father. He was a man of no estate and unable to raise them. The wife of Jesse Roberts was a cousin of this mother as was also the wife of P. A. Gibbs. Accordingly, in 1854, their father brought them from Daviess county and delivered them over to Roberts and Gibbs, who both resided in Lafayette county. Jennie was given to Mr. Gibbs and Susan to Mr. Roberts, to be kept and raised by them at their own expense. Mr. Gibbs testifies: “We couldn't refuse, and took them.” At that time Susan was a delicate child and seemed to be in bad health. She grew up to be a strong and healthy child.

Mr. Roberts was a man of frugal and industrious habits, and possessed an estate of about fifteen or twenty thousand dollars in value before the war. Susan was taken care of by Mr. and Mrs. Roberts in her infancy, and was raised and sent to school by them. She was received by them into the family and treated as a member of it. She called Mrs. Roberts “Ma” and Mr. Roberts “Pa.” After the emancipation of the servants in the family by the war, the housework had to be done by Mrs. Roberts and Susan. She attended to such household duties as she was able to perform, under the instructions and assistance of Mrs. Roberts, who was regarded as a superior housekeeper. They had assistance about the kitchen but were compelled to look after it principally themselves. Thus matters went on till the death of Mrs. Roberts in 1872. After that Susan took her place as lady of the house and attended to it as if it were her own. Before that time, as well as afterward, she had often, in cases of emergency, attended to matters about the place which are usually performed by men, such as catching a horse and bringing him in, and feeding stock. During the latter years of Mrs. Roberts' life the heavy part of the housekeeping was done by Susan, such as sweeping, washing and cooking, Mrs. Roberts being in feeble health.

It appears in evidence that she raised chickens, calves and pigs, and was allowed to sell them to her own use. With money received from such sources she used to purchase clothing and wearing apparel. Mr. Roberts was a very old man and died in 1877. He was feeble and sickly in his latter years, and Susan attended to him as faithfully as a daughter, and in doing this had to discharge the duties of a nurse. He executed a will in 1876 by which he bequeathed to Susan twenty acres of land and $500 in money, besides some household furniture. He had no children of his own, and the balance of his estate was devised to his kindred, who seem to be numerous enough. It appears from the evidence that this will was copied from a previous one similar to it in all respects except that it contained a legacy to one James Roberts who was left out of this one. It also appears that Susan had access to the wills and seemed to be aware of the fact that she was to be a legatee. Susan came of age in 1871; she was married...