Donovan v. Driscoll

• Decision Date: 12 April 1902
• Parties: TIM DONOVAN, Appellant, v. DANIEL DRISCOLL as Executor of Estate of Timothy Donovan, Deceased, Appellees
• Court: Iowa Supreme Court

90 N.W. 60

116 Iowa 339

TIM DONOVAN, Appellant, v. DANIEL DRISCOLL as Executor of Estate of Timothy Donovan, Deceased, Appellees

Supreme Court of Iowa, Des Moines

April 12, 1902

Appeal from Franklin District Court.--HON. J. R. WHITAKER, Judge.

PROCEEDING for the allowance of a claim against the estate of Timothy Donovan, deceased. Upon trial to a jury, the court directed verdict for defendant. Plaintiff appeals.

Affirmed.

Taylor & Evans for appellant.

J. H Scales for appellee.

OPINION

WEAVER, J.

Timothy Donovan, Sr., died testate, leaving to his son Timothy a legacy of $ 1,000, and the remainder of his estate to other children. The record does not disclose the amount or value of the estate, or whether the legacy to plaintiff was more or less than he would have received upon an equal distribution among the heirs at law. At the date of Mr. Donovan's death the plaintiff was about 38 years of age, and, with the exception of a few short periods in other service, had at all times made his home with his father. He helped his father in the work of the farm, and to some extent at least exercised active management of the farm work. For the labor thus performed he files a claim for $ 6,000.

I. No testimony whatever of any express agreement by the father to pay for these services is shown in the record, nor in our judgment is there any evidence of circumstances from which such agreement could be inferred or implied. Aside from the fact that plaintiff did remain a member of his father's family after arriving at his majority, and continued to perform labor and service on the farm until the father's death, the evidence relied upon by him is as follows: Henry Peters, a witness, says that in 1895 he spoke to the old gentleman about the son's labor, and said, "Tim ought to have good pay for it," to which Mr. Donovan responded that he "did not calculate Tim was working for nothing for him." Michael Driscoll testified to a conversation with the father, in which the latter said to the witness, "Your father ought to give you boys a chance. I would not want boys to work for nothing." Frank McGivney testified that in 1891, when plaintiff was away from home working for a brother, he heard the testator "say he would like to have Tim back." This constitutes the entire evidence before the jury in support of the proposition that the father ever agreed or expected to pay the plaintiff wages for the service performed by him. In our view the showing is entirely too meager and indefinite to justify a verdict in plaintiff's favor. The language which the witnesses attribute to the father cannot be interpreted as an admission of the existence of any agreement between him and the plaintiff; and, so far as it may be said to bear upon his purpose or intent to make compensation for plaintiff's services, it is equally consistent with the purpose to effect that object by the provision in his will. The doctrine that the services of a son remaining in the family home after his majority are presumed to be gratuitous, in the absence of an express contract or circumstances indicating a contrary intent on part of both parent and child, is too well established in this state to admit of question. Scully v. Scully's Ex'r, 28 Iowa 548; Smith v. Johnson, 45 Iowa 308; Cowan v. Musgrave, 73 Iowa 384, 35 N.W. 496; Enger v. Lofland, 100 Iowa 303, 69 N.W. 526. This presumption is not overcome by statements made by the parent to third persons that the son's services are valuable, or that they will be well paid for, or other like indefinite expressions. Decker v. Kanous' Estate, --Mich.-- (88 N.W. 398). So far, therefore, as pertains to the evidence before the jury, we think there was no error in directing a verdict for defendant.

II. The witness McGivney testified that while plaintiff was away from home at work for a brother during a part of the summer of 1891, he (witness), who was then living with the Donovan family, wrote a letter to plaintiff asking him to come back. He wrote the letter at the request of plaintiff's sister a member of the family. The father did not request it, was not present when it was written, and, so far as shown, had no knowledge whatever of the letter or of its contents. Upon this very unsubstantial foundation the plaintiff offered to show the contents of the writing, the letter itself being lost. This offer was refused, and error is assigned upon such ruling. The mere statement is sufficient demonstration of the incompetency of the testimony. The ruling was clearly right. Complaint is also made that plaintiff was not allowed to testify to his own expectation of receiving compensation for his services. This court has already held such testimony inadmissible. Cowan v. Musgrave, ...