Estate of Alexander, In re, 54040

• Citation: 445 So.2d 836
• Decision Date: 15 February 1984
• Docket Number: No. 54040,54040
• Parties: In re ESTATE OF Sam ALEXANDER, Deceased. Susie ALEXANDER, Administratrix v. Margie ALEXANDER, a/k/a Margie Moye.
• Court: United States State Supreme Court of Mississippi

Page 836

445 So.2d 836

In re ESTATE OF Sam ALEXANDER, Deceased.

Susie ALEXANDER, Administratrix v. Margie ALEXANDER, a/k/a Margie Moye.

No. 54040.

Supreme Court of Mississippi.

Feb. 15, 1984.

David A. Smith, Columbus, for appellant.

Charles L. Culpepper, Thomas C. Harvey, Jr., Columbus, for appellee.

Before BROOM, P.J., and ROY NOBLE LEE and DAN M. LEE, JJ.

BROOM, Presiding Justice, for the Court:

Services rendered "as a faithful spouse" are grounds upon which appellee, Margie Alexander, sought an "equitable lien entitling her to full use and occupancy" of the residence of Sam Alexander, deceased, for as long as Margie lives or occupies the property. Margie became married many years ago to one George Moye and without any divorce began to live with Sam Alexander as if married to Sam. Susie Alexander, administratrix of Sam's estate, appeals from the decree of the Chancery Court of Lowndes County, which in effect granted Margie a life estate to Sam's homestead property. We reverse on direct appeal.

Argument of the Administratrix is that the lower court erred "in impressing an equitable lien against the property of the decedent Sam Alexander for the benefit of the respondent, Margie Alexander ...."

In controversy is the dwelling house (deceased Sam Alexander's homestead) occupied by Margie and Sam during the last twenty years of his life. Without divorcing George Moye, her husband, Margie lived with Sam Alexander approximately thirty years from about 1946 until Sam's death in 1980. These proceedings were commenced in the Chancery Court of Lowndes County by petition of Sam's two sisters, Susie Alexander and Pearl Alexander, joined in by a nephew, William Alexander. The three of them, along with a second nephew, Willie Mack Shelton, appear to be Sam's sole and only heirs at law. The petition successfully sought appointment of Susie as administratrix.

Margie Alexander (appellee) responded to the petition by pleading that she was entitled to an equitable lien on Sam's house. In answer to interrogatories, she stated that she had previously entered into ceremonial marriages with two men, the first of whom died prior to her second marriage. She (though not divorced from George Moye) averred that for many years she had lived with Sam and shared his name, assets and liabilities. Her testimony was that she did their cooking, washing, and ironing during those years, and that "we was considered man and wife". They used his wages and her wages (working for others) to pay their living expenses. Sam made the payments on the house until he got sick, after which time she paid them. Nowhere in her testimony did Margie establish or even estimate the amount of money she paid on the house which is titled in Sam's name. He was hospitalized for a time and then returned home, where Margie nursed him until his death. According to her, Sam's relatives ignored him during his illness except for a nephew who helped with him on weekends for over a year. Margie took care of the funeral and had Sam buried "on my mother's square ...". She testified that she expected to live the rest of her life "in that house where I holp (sic) him pay for." Her and Sam's relationship had its inception when he moved in with her while she was living in her grandmother's house.

Appellant's brief points to the lack of evidence that the deceased, Sam Alexander, knew of any expectation of Margie to be paid when he accepted her services. The transcript is also barren of evidence that he accepted her services under circumstances which indicate to a reasonable man that her services were offered with the expectation of compensation. In re Burkett's Estate, 185 Miss. 354, 186 So. 834 (1939), states:

The deceased may have intended to compensate the claimant for her services, but no obligation so to do arose unless she knew or ought to have known that the services were being rendered on the expectation of compensation therefor.

185 Miss. at 360, 186 So. at 835. Hoyle v. Smith, 113 Miss. 729, 74 So. 611 (1917), involved a sister who took care of her infirm, elderly sister during her last years and subsequently sought compensation for her services. This Court held there was no contract, express or implied, to compensate the claimant sister for her services out of the estate's corpus. In denying recovery from the estate of the deceased sister, our opinion states:

The claim of Mrs. Smith might naturally arouse one's sympathy and appeal to one's sense of justice. But there can be no obligation on the part of the estate here proceeded against in the absence at least of an implied obligation or contract. The proof shows without dispute that the two old sisters, Mrs. Smith and Miss Hoyle, lived together upon their joint property as members of the same household, and that the attention and care which Mrs. Smith lavished upon her invalid sister was prompted by feelings of natural love and affection, and that her services as caretaker were not rendered in pursuance of any contract whatever or with any expectation of compensation. During the many years prior to the death of Miss Hoyle, Mrs. Smith rendered no bill for services or support, and this claim is now presented for the first time long after Miss Hoyle's death. If Miss Hoyle intended for Mrs. Smith to have her property, she could have easily executed a deed or will. Our court, in Bell v. Oates, 97 Miss. 790, 53 South. 491, in speaking of this character of claim, said: "Claims of the character of the one here involved, brought up for the first time after the death of the decedent, are looked upon by the courts with disfavor." In order to establish one, "the evidence must clearly establish a contract, express or implied, between the claimant and decedent, providing therefor."

113 Miss. at 734-35, 74 So. at 612-13.

On the issue of whether the meretricious relationship between Sam and Margie precludes equitable relief in her favor, no Mississippi case precisely in point has been cited or called to our attention. Recently the Supreme Court of California in Marvin v. Marvin, 18 Cal.3d 660, 557 P.2d 106, 134 Cal.Rptr. 815 (1976), a case involving a woman's "palimony" claim against a movie star, dealt with a similar issue and stated:

The courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services ... In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.

18 Cal.3d at 665, 557 P.2d at 110, 134 Cal.Rptr. at 819. The Marvin case suggests several theories under which an agreement between Margie and Sam Alexander could be implied. Marvin seems to have fashioned a judicial remedy upon some kind of a "tacit understanding" between the parties about some expected "monetary reward" to Margie. Such an understanding does not appear here as between Margie and Sam.

Hewitt v. Hewitt, 77 Ill.2d 49, 31 Ill.Dec. 827, 394 N.E.2d 1204 (1979), involved a claim similar to the one asserted here. In rejecting the claim, the Illinois court stated that to award equitable relief under such circumstances would contravene public policy.

Chrismond v. Chrismond, 211 Miss. 746, 52 So.2d 624 (1951), and Taylor v. Taylor, 317 So.2d 422 (Miss.1975) are factually quite dissimilar and thus not controlling. In both of those cases the litigation was brought by a woman against the man with whom she had entered into an actual ceremonial marriage. In the present case, there was not even any attempted legal ceremonial marriage but a mere "live-in" relationship which cannot be allowed to negate the law of descent and distribution. As contradistinguished from Chrismond and Taylor, in the present case the suit is not against a living so-called husband who mistreated or attempted to mistreat the woman (Margie). Here the man is dead and the suit is an attempt to gain a part of his estate. The Taylor opinion states the "separation cast her adrift", but here there is no separation except by death, and in no wise would Margie be cast "adrift" because by her own testimony she owns her grandmother's former house which is rented. As was true in Aldridge v. Aldridge, 116 Miss. 385, 398, 77 So. 150, 151 (1918), the present litigant, Margie, "to all intents and purposes was simply his (Sam Alexander's) mistress."

Georgia's Supreme Court recently decided a case where a cohabitant filed an action seeking her portion of purchase money interest in a house. Rehak v. Mathis, 239 Ga. 541, 238 S.E.2d 81 (1977). There the court held that the fact that the parties were unmarried and cohabiting would constitute immoral consideration in an agreement to live together, and denied relief to the claimant cohabitant.

Beal v. Beal, 282 Or. 115, 577 P.2d 507 (1978), was a recent case wherein a claim similar to that asserted here was upheld based upon intent of the parties. Other cases scattered across this nation show diverse theories used by different courts in deciding controversies similar to that before us here.

We think the logical view is that stated by a Michigan court. Carnes v. Sheldon, 109 Mich.App. 204, 311 N.W.2d 747 (1981). The following, excerpted from Carnes, expresses our view:

We are of the opinion that public policy questions of such magnitude are best left to the legislative process, which is better equipped to resolve the questions which inevitably will arise as unmarried cohabitation becomes an established feature of our society. While the judicial branch is not without power to fashion remedies in this area, see, e.g., Tyranski [v. Piggins, 44 Mich.App. 570, 205 N.W.2d 595] supr...