Fili's Estate, In re, No. 47527

CourtUnited States State Supreme Court of Iowa
Writing for the CourtSMITH; HAYS
Citation40 N.W.2d 286,241 Iowa 61
Docket NumberNo. 47527
Decision Date13 December 1949

Page 286

40 N.W.2d 286
241 Iowa 61
No. 47527.
Supreme Court of Iowa.
Dec. 13, 1949.

Page 287

Whicher & Davis, and Crary, Munger & Crary, all of Sioux City, for appellant.

Day & Dunkle, and Lowell C. Kindig, all of Sioux City, for appellee.

SMITH, Justice.

The important questions here concern the extent, if any, to which claimant was disqualified

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as a witness under the 'dead man's statute,' section 622.4, Code 1946, I.C.A. The proceeding was based on her claim for services allegedly rendered by her, mistakenly believing she was decedent's legal wife. The claim was resisted by the administrator of decedent's estate (Joseph Fili, his son) and by the intervenor-guardian of decedent's incompetent widow, Ruth Fili. It does not appear, however, that the widow is financially interested in the proceedings.

The answer admitted there was a purported marriage ceremony between claimant and decedent, Michael Fili, November, 25, 1936, and that said marriage had previously, in the estate proceedings, been adjudged illegal because he had a wife living and undivorced. It seems undisputed the wife was in a mental institution at all times pertinent to the litigation. Trial was to the court--jury waived.

The trial court first awarded claimant one-half the net estate [241 Iowa 64] after 'all proper allowances and dower interest' were set aside to the widow and 'all proper claims and costs' were paid. Thereafter, upon motion by defendant-administrator ('for judgment notwithstanding') the court set aside the first award and allowed claimant $3000. The administrator has appealed.

The administrator assigns error in permitting claimant to testify to personal conversations and transactions with decedent, and urges insufficiency of proof of the amount and value of work performed and of proof that it was neither gratuitous nor unpaid for.

Claimant advances various propositions: 1. That the 'dead man's statute' does not apply since claimant was not seeking to recover on contract, express or implied; 2. that the administrator by his testimony opened the door to testimony by claimant; 3. that even though some of claimant's testimony should be held improperly admitted and were to be stricken, there would still be ample evidence to support the allowance; 4. that the burden was not on her to prove either that the services were not gratuitously rendered or had not been paid for; and, 5. that there was sufficient competent testimony as to the amount and kind of service rendered to support the allowance.

I. Some contention is made here that the proceeding was in equity or equitable in its nature. We find no merit in this argument. It was a probate proceeding on a claim. We think it was triable at law, and was so tried. Jury was first demanded, then waived, the court ruled on objections to evidence, and changed the original award by a ruling on a motion 'for judgment notwithstanding.' Probate proceedings are inherently at law. In re Estate of Jenkins, 201 Iowa 423, 426, 205 N.W. 772; McIntosh v. Brown, 159 Iowa 41, 43, 139 N.W. 926. The fact that the doctrine of 'unjust enrichment' is considered in determining the amount of recovery does not change the nature of the proceeding. While there is reference to equitable relief in claimant's prayer we do not think the allegations of the claim require equitable treatment.

II. It is also argued the 'dead man's statute' does not apply here since claimant is seeking recovery for 'unjust enrichment' and not 'on the basis of a contract, express or implied in fact,' and therefore she was a competent witness to testify concerning[241 Iowa 65] her transactions and communications with decedent. Even if the premise were conceded we know of no such limitation on the operation of the 'dead man's statute.' No case is cited here to support the proposition. The language of section 622.4 is broad and comprehensive. 'No party to any action * * * shall be examined as a witness in regard to any personal transaction or communication * * *.' (Italics supplied.)

The fact, if it be a fact as stated by claimant, that all our cases (involving claims for services rendered) in which the statute was applied were cases where the rejected testimony was offered to establish an express or implied contract, is not controlling. Of course services are almost invariably rendered pursuant to contract, express or implied, and cases involving them

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usually run into the problem presented by the 'dead man's statute.' But it does not follow the statute would not apply to other cases.

Furthermore, we think claimant's case here does ultimately rest on the theory of implied contract, that is, contract implied in law or constructive. 17 C.J.S., Contracts, § 4; City of Pella v. Fowler, 215 Iowa 90, 96, 244 N.W. 734, 737, and cases cited. She pleaded the value of her services and introduced evidence that could only be material as tending to prove their value. The theory of 'unjust enrichment' of decedent's estate by reason of the services seems to be more a theory for measuring the value of the service than a substitute for the doctrine of implied contract creating the liability. At least some of the cases cited by claimant in support of the proposition seem to base the right of recovery, in cases similar to the instant case, upon implied contract. Sanders v. Ragan, 172 N.C. 612, 90 S.E. 777, L.R.A.1917B, 681; Wolf v. Fox, 178 Wis. 369, 190 N.W. 90, 31 A.L.R. 420. See also Roberts v. Roberts, 64 Wyo. 433, 196 P.2d 361, 367, 369, citing Keener on Quasi Contracts, page 19; also see Keener on Quasi Contracts, page 321 et seq.

III. The administrator testified in his own behalf and it is argued his testimony related back and acted as a waiver, under section 622.5, Iowa Code 1946, of objections to claimant's competency. That section is a part of the 'dead man's statute' and provides: 'This prohibition shall not extend to any transaction or communication as to which any such * * * administrator * * * shall be examined on his own behalf * * *.'

[241 Iowa 66] The administrator testified: 'November, 1936, (the date of claimant's and decedent's illegal marriage) I lived in Boys Town, Nebraska, Father Flanagan's; * * * I came to my father's house here in Sioux City, 607 Main St., no other members of my family were there at that time; a year and a half later I came there to live; Wilma (sister) came for awhile and my sister Orella.' He said his sisters were aged 15 and 17, respectively, both going to school. 'Helen Russell ws living with my father at the time; * * * she was there in the house; after I came back in the winter of 1938 I lived there * * * I would say about four months.' He also testified his father brought claimant along to Boys Town when he came to see his son there on at least two occasions.

The administrator testified to conversations he overheard between his father and claimant. They pertained to objections on claimant's part to the presence of the children: 'I knew you had a wife, but if I had known that you were going to bring your brats home I wouldn't have gone through with the ceremony.'


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