Gamblin v. Wells' Estate

• Decision Date: 08 November 1934
• Docket Number: No. 23107.,23107.
• Citation: 75 S.W.2d 862
• Parties: GAMBLIN v. WELLS' ESTATE.
• Court: Missouri Court of Appeals

75 S.W.2d 862

GAMBLIN v. WELLS' ESTATE.

No. 23107.

St. Louis Court of Appeals. Missouri.

November 8, 1934.

Rehearing Denied November 27, 1934.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be published in State Reports."

Action by Amos Gamblin, a minor, by Clara Norvell, his guardian and curatrix, against the estate of Lettie B. Wells, deceased, Frank C. Haley, III, administrator. Judgment for plaintiff, and defendant appeals.

Affirmed.

Hostetter & Haley, of Bowling Green, and F. D. Wilkins, of Louisiana, Mo., for appellant.

May & May, of Louisiana, Mo., for respondent.

BECKER, Judge.

This is a claim for services against an estate. Plaintiff's petition contains two counts. The first count seeks to set aside, on the ground of fraud, an allowance of $30 by the probate court of Pike county against the defendant estate, upon a claim presented by the then guardian of plaintiff, it being charged in the count that the then guardian of the plaintiff "at the instigation and behest of George Maher, the son and sole heir of the deceased, Lettie B. Wells, for the fraudulent purpose of forestalling and preventing the allowance of and the payment by the said estate of the amount due Amos Gamblin, claimant, for his work, labor and services to the deceased, and for the fraudulent purpose of cheating the said Amos Gamblin out of the amount actually due him therefor, presented to said probate court a fictitious claim for the nominal sum of $30 for the services rendered by the said Amos Gamblin to the said Lettie B. Wells during a period of time from April 1, 1925 to October, 1932; * * * that as an inducement to the probate court to make said nominal allowance the then guardian of claimant, through the said George Maher, son and sole heir of the deceased, Lettie B. Wells, and by reason of representations so made by him, represented to said court that the said George Maher had promised that the said minor would be given a home by the said George Maher and by him employed until he reached the age of 21 years; that the said promises and representations so made by the said Maher were by him knowingly false, and that he did not intend to carry out any such fraudulent promises; that shortly after said judgment of allowance, said minor, though always of steady and regular habits, and industrious and attentive to business, was discharged by the said George Maher, and compelled by him to leave said home; that such promises were an imposition on the credulity of said guardian and curator, and said probate court, and constituted a fraud in fact, and a fraud in law on said court; that said judgment of allowance of said $30 was thus collusively obtained and fraudulently procured; that the said sum was never paid to said minor, and never intended to be paid when the judgment of allowance was obtained; that at the time of obtaining said judgment of allowance as aforesaid, said George Maher then knew that said minor then had a good and meritorious claim for work, labor and services faithfully rendered and performed for said deceased during all the years beginning April 1, 1925, and ending at her death, and he then well knew that the affidavit attached to the claim presented for only $30 was knowingly untrue; that the very concoction and procurement of the judgment of allowance aforesaid was fraudulent and imposed on the court's jurisdiction, and the court was purposely misled into making said allowance," and prays that the allowance of the $30 claim be canceled.

The second count presents a claim for work, labor, and services performed for said Lettie B. Wells at her special instance and request from April 1, 1925, until the day of her death in October, 1932, alleging the reasonable value of such services to be $2,070; that no part of said sum had been paid, and that the sum is now justly due.

The court, on the hearing of the first count, set aside the allowance of the $30 claim on the ground of fraud. The second count for services rendered was tried to a jury and resulted in a verdict in favor of the claimant in the sum of $1,000. From the resulting judgment, after an unsuccessful motion for new trial, defendant appeals.

The evidence discloses that on October 26, 1932, Lettie B. Wells died intestate leaving as her only heir George Maher, a son by a former marriage. For a number of years prior to her death, she and her second husband, Forrest Wells, owned and lived on a farm near Louisiana, Mo., operating a small dairy, selling the milk from some ten to fifteen cows to customers in said city. In 1925 the deceased and her said husband, Forrest Wells, took the claimant, Amos Gamblin, into their home from the Missouri Baptist Orphans' Home at Pattonville, St. Louis county, Mo. The boy was then eleven years old, small for his age, and afflicted with epilepsy. After several weeks, Amos was returned to the orphans' home and the Wells took back to the farm with them from the home another boy named Woodrow Cove who was older than Amos and a "much larger boy." Amos, however, a few weeks after his return to the orphans' home, was brought back by the Wells to their farm in the spring of 1925 and lived there continuously up to the time Mrs. Wells died in 1932. Woodrow Cove, the other boy, remained on the farm a year or two. In February, 1927, Forrest Wells separated from his wife and left the farm, after which time Amos and Mrs. Wells ran the farm together, Amos helping her in milking the cows, doing chores, and making the daily delivery of milk to Mrs. Wells' customers in Louisiana.

There is abundant testimony that Mrs. Wells considered Amos a good boy, obedient and industrious; that she was fond of him and treated him as though he was her son that she fed and clothed the boy and sent him to school.

Mrs. Wells, from time to time, engaged various men to do the heavy farm work, such as plowing, putting up hay, fixing the fences, etc. Mrs. Wells herself was a hard working, frugal woman, very saving, and rarely went to town excepting when her business required it; and the record is replete with testimony that Amos, from the time Wells left the farm early in 1927, aided in milking the cows, bottling the milk and getting it ready for delivery, and then driving the delivery wagon to town and making the deliveries daily up to the time of Mrs. Wells' death. Upon the death of Mrs. Wells, her son George, his wife, and two children moved upon the farm and Amos remained with them until June, 1933, when, as the result of a quarrel, he left and went to live with Clara Norvell, a sister of Mrs. Wells.

Defendant urges here on appeal that its demurrer offered at the close of the case should have been sustained because plaintiff failed to prove that there was an intention on his part, at the time said services were rendered, to charge therefor; and failed to prove that there was an intention on the part of the deceased Lettie B. Wells, at the time such services were accepted by her, to pay therefor, and that since it was admitted that plaintiff lived with Mrs. Wells as a member of her family from the time he was taken into the family until the date of her death, the law presumes that whatever services he may have rendered were gratuitous, "the mere rendition and acceptance of the services raising no implication of a promise to pay therefor." A careful reading of the record convinces us that the point is without merit.

We readily concede that where a family relationship exists, services rendered by one member of a family to another, or for the common purpose of the family itself, are presumed to have been rendered gratuitously. Lillard v. Wilson, 178 Mo. 145, 77 S. W. 74; Miller v. Richardson (Mo. App.) 56 S. W. (2d) 614; Roller v. Montgomery's Estate (Mo. App.) 45 S. W. (2d) 945; Broyles v. Byrne (Mo. App.) 13 S. W. (2d) 560. The presumption is, however, not a conclusive one. It may be overcome by showing an express agreement for payment or by showing facts and circumstances under which the services were rendered which will support the implication that the services were to be paid for. Lillard v. Wilson, supra. In other words, a promise to pay may be inferred from sufficient facts and circumstances in evidence reasonably justifying the inference of an actual agreement or understanding to pay therefor. Absent, however, direct proof of an express contract, the burden is upon the party claimant to prove that he intended, at the time he rendered the services, that he should be compensated, and that the party receiving the benefits of his labor intended that compensation should be paid. Brown v. Holman, 292 Mo. 641, 238 S. W. 1065; Miller v. Richardson, supra; Elstroth v. Karrenbrock (Mo. App.) 285 S. W. 525; Wood v. Lewis' Estate, 183 Mo. App. 553, 167 S. W. 666.

Examining the record in light of the rule of law pertinent thereto, we find that George Sisson testified that he had known Lettie B. Wells in 1925 and prior thereto; that he worked on her farm from 1925 until the time of her death; that when he did his first work at the farm Amos was already there. Amos "did the milking and tending to the cows and hogs; did chores and drove the milk wagon; delivered milk; collected the money and brought it to Mrs. Wells. He stayed there constantly; he never was off the place only when he went on his milk route"; that after Forrest Wells left his wife in 1927, he, Sisson, attended to buying the feed and bought and sold any stock that was necessary; took care of the fences and the gates, as well as the repairs to the place. Mrs. Wells raised alfalfa hay for the cows. "I use to go out there and put up the hay for them. Amos helped in that what time he wasn't working in the dairy with the cows. Mrs. Wells talked to me about Amos' services. She said she intended paying him. Amos was present at times. She said his services were good. She said she couldn't have never got anybody that would have done like Amos had and stayed there and never...