Ellis v. Cary

• Decision Date: 25 April 1889
• Parties: ELLIS v. CARY.
• Court: Wisconsin Supreme Court

74 Wis. 176

42 N.W. 252

ELLIS

v.CARY.

Supreme Court of Wisconsin.

April 25, 1889.

Appeal from circuit court, Milwaukee county; D. H. JOHNSON, Judge.

The plaintiff presented a claim in the Milwaukee county court against the estate of John Gorman, the defendant's intestate, for services rendered by her as his housekeeper from January 1, 1879, to the time of his death, which occurred March 26, 1887. The county court disallowed the claim. On appeal the circuit court reversed the judgment of the county court, and directed the latter court to allow the claim at $1,700, that being the amount stipulated to be due her in case her claim should be allowed. The case is fully stated in the findings of fact and conclusions of law of the circuit court. These are as follows: “ First. That John Gorman died on the 21st day of March, A. D. 1887, being of about the age of seventy-two (72) years, intestate, and never having made a will; and failed and neglected to give or devise in any manner his property, or any part thereof, to claimant. Second. That the estate whereof John Gorman died seised or in any way possessed consisted of real estate of the value of $1,300, and personal estate of the value of $790, together amounting to $2,090. Third. That Elizabeth Ellis, the claimant, was the step-daughter of said John Gorman, deceased, and lived and made her home with him and her mother, at his house, until the death of her mother, on or about the 1st day of January, A. D. 1879. Fourth. That, shortly after the death of her mother, said claimant left the house of John Gorman, and went to live with her brother in said city of Milwaukee. Fifth. That, soon after said claimant left the house of said John Gorman, an oral agreement was entered into between said deceased and the claimant that, in consideration of her keeping his house and taking care of him during the residue of his life, he was to devise and bequeath to her all his real and personal property, as compensation for her services so to be rendered to deceased. Sixth. That on or about the 1st day of July, A. D. 1879, said claimant returned to the house of the deceased, and became his housekeeper, in which position she remained, discharging her duties faithfully to the day of his death, in pursuance of the aforesaid agreement. Seventh. That the value of claimant's services rendered said deceased prior to the 23d day of April, A. D. 1885, was and is the sum of $4 per week, and the value of such services subsequent to said 23d day of April, 1885, was and is the sum of $5 per week.” And the following conclusions of law thereupon: “ First. That the statute of limitations has no application to any part of plaintiff's claim. Second. That the claimant is entitled to recover in this action upon a quantum meruit from the estate of John Gorman, deceased, the value of the services rendered by her from the 1st day of July, 1879, to the 21st day of March, 1887, amounting to the sum of $1,700. Third. That the judgment and order of said county court herein appealed from should be reversed, and the papers, documents, and records herein remitted to said court, and said court directed to reverse its said judgment, and enter judgment therein for said claimant, and against said estate, in accordance with the opinion of this court, and its findings and conclusions herein. Let judgment be entered for the claimant for the sum of $1,700, and costs.”

In addition to the above findings, the court found, at the request of the defendant, as follows: “(1) That said John Gorman was in poor circumstances financially, and was employed as the driver of a dray at all times in the complaint mentioned. (2) That the real estate of said deceased consisted of a 20-foot lot, with a small one-story house thereon, containing three rooms, which house was used and occupied by said deceased at all times aforesaid as his homestead. (3) That claimant, from the time she was a small child, lived with the deceased at his home up to and until the time of her marriage, which occurred on the 17th day of November, 1886, excepting only a period of two months, when she lived with her brother, and after her marriage she and her husband lived there up to the death of said John Gorman; and that during said two months while said claimant lived with her brother said deceased lived at his home entirely alone. (4) That at all times mentioned in her said claim the claimant worked out in a shirt factory on an average of four or five whole days in each week, and received for such services about $7 per week. (5) That no account whatever was ever kept between claimant and said deceased, and that claimant at all times came and went, received and entertained her relatives and friends at said house, as she pleased, and her husband courted and married her from there, and they lived there, and made it their home after their marriage. (6) That a brother of said claimant lived with said deceased, at his said house, for a period of five years, and paid his board during all such time, and that claimant never paid any board while she lived at said house. (7) That there never was any contract in writing between deceased and claimant respecting compensation for her services, nor any note or memorandum of any contract signed by said deceased or any duly-authorized agent. (8) That said claimant never assented, except by her actions, to the contract alleged in her complaint, and never was in any way obligated thereby. (9) That said deceased was repeatedly urged to, and often positively declined to, make a will providing for the claimant.”

The defendant appeals from the judgment of the circuit court.Van Dyke & Van Dyke, for appellants.

Somers, Somers & Dorr, for respondent.

LYON, J., ( after stating the facts as above.)

Undoubtedly the claimant, Mrs. Ellis, being the step-daughter of the deceased, John Gorman, and a member of his family, cannot recover against his estate for her services without proving an express promise or agreement on his part to pay her therefor. And such promise or agreement must be established by direct and positive evidence, or by circumstantial evidence equivalent thereto. It has been so held in many cases in this court cited in the briefs of the respective counsel. The agreement alleged in the complaint or claim of Mrs. Ellis, and found by the court to have been made, is, in substance, that if Mrs. Ellis would keep the house of the deceased, and take care of him during the residue of his life, he would devise and bequeath to her all his real and personal property as compensation for such services. The agreement was oral. When it was made, and when John Gorman died, his estate consisted of both real and personal property, but the most of it was real estate. It is claimed on behalf of the administrator that the testimony fails to prove the above agreement. Mrs. Ellis testified as a witness on her own behalf. She gave no testimony in chief of conversations or transactions had by her with the deceased, but on her cross-examination, in answer to a question by counsel for administrator, she testified that she had read the statement of her claim in the complaint, and that the same was true. This is direct and positive evidence of the alleged express agreement, and is not controverted directly. Further than this, other witnesses testified, and their testimony is not disputed, that the deceased said to them, in substance, at different times, that Mrs. Ellis was to have all his property at his death, and that she understood it, or understood the agreement. In addition to the above testimony, the fact that she left him when her mother died, and only returned to live with him after repeated solicitations, is significant. True, many other statements of the deceased were testified to, which, standing alone, are little more than expressions of his intention to leave all his property to Mrs. Ellis, but, read in connection with the more direct and positive testimony of an agreement, they serve to emphasize such testimony. But, disregarding these expressions of intention, we think the testimony is sufficient, within the rule above stated, to establish the alleged express agreement. We must therefore affirm the finding of the circuit court in that behalf.

The agreement thus established is in part...