Fruitt v. Anderson

• Decision Date: 28 February 1883
• Citation: 12 Bradw. 421,12 Ill.App. 421
• Parties: THOMAS E. FRUITT, Administrator, etc.,v.ELIZABETH ANDERSON, Conservatrix, etc.
• Court: United States Appellate Court of Illinois

12 Ill.App. 421

12 Bradw. 421

THOMAS E. FRUITT, Administrator, etc.,

v.ELIZABETH ANDERSON, Conservatrix, etc.

Appellate Court of Illinois, Fourth District.

February Term, 1883.

OPINION TEXT STARTS HERE

ERROR to the Circuit Court of Madison county; the Hon. WILLIAM H. SNYDER, Judge, presiding. Opinion filed April 13, 1883.

Messrs. IRWIN & SPRINGER, for plaintiff in error; that in an action of assumpsit, the promise may be imperatively and conclusively presumed by law from the existing relations proved between the parties, cited Greenl. on Evidence, §§ 102, 108.

Generally it is sufficient if the money is paid, or service rendered for a reasonable cause and not officiously: 2 Greenl. on Evidence, § 108; Bailey v. Busing, 28 Conn. 463.

The minor who is released from his father's service, stands as to his contracts for labor either with strangers or with him, upon the same footing as if he had arrived at full age: Schouler on Domestic Relations, 371; Nightingale v. Whitington, 15 Mass. 272; Corey v. Corey, 19 Pick. 29; Varney v. Young, 11 Vt. 258; Johnson v. Gibson, 4 Smith, 231; Steel v. Steel, 12 Penn. 64; Hall v. Hall, 44 N. H. 293.

The Pauper Act does not relieve the pauper from his obligation to make compensation for his support: Mercer v. Jackson, 54 Ill. 397.

An insane person having property adequate to his support is not a pauper, and the county is not liable for such person's support: Alton v. County, 21 Ill. 115.

The estates of insane persons become a trust fund for their support, and like any other trust fund, subject to the direction and control of a court of equity: Dodge v. Cole, 97 Ill. 338; 2 Story on Equity Jurisprudence, § 1365, b; Perry on Trusts, § 615; Lee v. Brown, 4 Ves. 396; Bond v. Lockwood, 33 Ill. 212.

The Statute of Limitations did not begin to run until the trust relation of Anderson to John ceased, and a settlement of accounts between them was required: Angell on Limitations, Chap. 7; Spencer v. Spencer, 4 Md. 368.

Messrs. HAPPY & TRAVOUS, for defendant in error; that the obligation on the part of the parent to maintain the child, continues until the latter is in a condition to provide for its own maintenance, cited 2 Kent's Com. 190; Hunt v. Thompson, 3 Scam. 179; R. S. 1881, Chap. 107.

The law will not imply a promise to pay for support and maintenance on the part of parent or child from a simple residence in the family. An express promise is necessary: Liddell v. Hastings, 11 Rep. 305; Wilcox v. Wilcox, 48 Barb. 327; Williams v. Hutchinson, 5 Barb. 124; Dye v. Kerr, 15 Barb. 444; Vankuren v. Saxton, 3 Hun, 547; Myers v. Malcom, 20 Ill. 621; Robinson v. Cushman, 2 Denio, 149; In re Kelley's Estate, 1 Tucker, 28.

Where children remain with parents after attaining majority, the presumption is that they remain on same terms previously existing between them: Miller v. Miller, 16 Ill. 296; Freeman v. Freeman, 65 Ill. 106; Byers v. Thompson, 66 Ill. 421; Morton v. Rainey, 82 Ill. 215; Guffin v. First Nat. Bank, 74 Ill. 259; Trumble v. Dodd, 2 Tenn. 500; Ex parte Bond, 2 M. & K. 439; Presley v. Davis, 7 Rich. 105; Matter of Kane, 2 Barb. 375.

The personal representative can not prefer a claim against child for past support where parent in his lifetime had not done so: Dupont v. Johnson, 1 Bailey Eq. 277; Griffith v. Bird, 22 Gratt. 73.

All alleged indebtedness which had accrued five years prior to the commencement of this suit is barred by the Statute of Limitation: R. S. Chap. 83, § 15; Reeves v. Herr, 59 Ill. 81; Schillo v. McEwen, 90 Ill. 77; Phœbe v. Jay, Breese, 207; Hubbard v. Stearns, 86 Ill. 35.

BAKER, P. J.

A point is made that the circuit court erred in excluding testimony offered by plaintiff in error, of statements made by his intestate at various times during the latter years of his life to sundry of his neighbors and creditors with regard to his claim against his insane son. It is very clear such testimony is not competent, and the action of the court complained of was right. The suit is prosecuted against defendant in error as conservatrix of a lunatic, and the intestate, were he alive, would be wholly disqualified to testify as a witness for the purpose of establishing the cause of action at issue; and it is not perceived upon what theory, now that he is dead, mere statements made by him while alive and an interested party and not under oath, can be held proper evidence to make out such cause of action.

John Anderson was emancipated by his father in the spring of 1862, and in November of that year he arrived at the full age of twenty-one years. At the time he became insane, in June, 1863, at Fort Pickens, he had the right to his own wages, the disposal of his own time and the control of his own person, at least so far as regards parental authority. Soon afterward he was brought back to his father's house hopelessly insane; and he was supported and maintained, and supplied with all the necessaries, by the father, for a period of about seventeen and a half years, and until the date of the father's death, in December, 1880. The proofs show it was worth at least $50 a month during all that period to provide him with food, clothing, lodging and necessary attendance. Under the circumstances disclosed by the record, can the administrator of the father recover in this action of assumpsit against the conservatrix of the son for these necessaries so furnished?

The important inquiry arises whether or not the intestate, at the time he opened the doors of a father's house and home to receive his unfortunate son and undertook the burden of his future support, or at any time during the many years he provided him with a place of refuge and food, raiment and attention, did so with an existing intention and expectation of receiving a pecuniary recompense therefor. If all he did was intended as a gratuity then, after such free gift had been willingly bestowed and had become an accomplished fact, he could not change his mind and charge it as a debt. Neither, under such circumstances, where the father had not thought proper to claim a recompense from the child, would the administrator, after the father's death, be allowed to recover, as a debt due the intestate, that expenditure which the father had regarded as a mere gratuity, voluntarily conferred to meet the requirements of what he felt to be a moral obligation imposed upon him.

The law will not, in the absence of special circumstances, imply either an intention to charge or a promise to pay for board or services among members of the same family living together as one household. In such case the presumption naturally arises, from the very fact of the relationship, it was a gratuity. To rebut this presumption, ordinarily, either an express contract must be proven, or it must be shown by facts and circumstances that at the time the board was furnished, or services rendered, the one expected to receive payment, and the other to make payment.

The circumstances of this case strengthen the presumption of a voluntary gift, instead of tending to overthrow it; at least so far as regards the intention entertained by the intestate at the time he assumed control and care of his lunatic son, and for many years thereafter. He was an industrious farmer, owned a valuable farm in Madison county, of over two hundred acres, on which he lived; had stock and personal property worth some $3,000; shortly thereafter purchased 154 acres of land in Iowa, which he fenced, and upon which he had a house built, and seems to have been in a prosperous condition. On the other hand his son, who was a mere youth and unmarried, was possessed of no real estate, and but little personalty; and what there was of this personal property was used up, or absorbed with that of the father and family. No steps were taken for many years to have a conservator appointed for him; no inventory was made of his personalty, and no administration thereon had; and circumstances seem to indicate that prior to 1876 the father had no knowledge or expectation even that his son was entitled to a pension as a soldier. Indeed, we find no facts existing in 1863, or for many succeeding years, which tend in any degree to disclose there was in the mind of the father even a hope he might be remunerated pecuniarily for the expense and trouble he was incurring.

It appears, however, that by 1876 there was a radical change in the circumstances of intestate; he was getting quite old, had heart disease, and was unable to do much work; he had met with misfortunes; his farm in Madison county was mortgaged for $7,000 or $8,000; he was in debt some thousands of dollars in addition to this, and was embarrassed in finances, and being pushed by his creditors. These troubles culminated, in his old age, in his being compelled to sell his farm to pay off the incumbrances, and in his having the Iowa lands deeded to his wife to compensate her for lands of her own that had been used in paying debts of his. These are facts the existence of which would fully have justified him in the forum of conscience in changing his mind, and resolving thereafter to demand from his son reasonable compensation for the necessaries of life thereafter furnished him. They, however, would not afford him legal ground for re-claiming that which he had already donated; the intent he had at the time must necessarily govern as to that. But the real question is, does the evidence establish it as fact that there was a change of his intention in this regard? The circumstances noted are inconclusive and unsatisfactory in their character; and the decision could not fairly be deduced from them considered alone, his intent was otherwise than it had been. The controlling facts are these: That on the 7th...