Gaulden v. Ramsey

• Decision Date: 28 June 1920
• Docket Number: 21135
• Citation: 85 So. 109,123 Miss. 1
• Court: Mississippi Supreme Court
• Parties: GAULDEN v. RAMSEY,

85 So. 109

123 Miss. 1

GAULDEN v. RAMSEY,

No. 21135

Supreme Court of Mississippi

June 28, 1920

March 1920

1. EXECUTORS AND ADMINISTTRATORS. Claim for board, lodging, and services should lie allowed if supported by contract.

A claim against the estate of a near relative for board, lodging, and services should be allowed if supported by a contract either express or implied.

2. EXECUTORS AND ADMINISTRATORS. Sufficiency of description on probate of claim based on a continuous parol contract.

The requirement of section 2106, Code of 1906 (Hemingway's Code, section 1774), that a person desiring to probate a claim resting in parol shall present to the clerk an itemized account or a statement of the claim in writing, etc., is complied with in probating a claim for board, lodging, and services based on a continuous contract covering a period of three years by describing the claim as "To care and attention including board, lodging,... and service for three years prior to the death of said Mrs. O. D. Graves, and being from April 20, 1913, to April 20, 1916."

3. EXECUTORS AND ADMINISTRATORS. Defective description of some of the several items of a claim does not render the probate of the claim void.

Where the written statement of a claim against the estate of a decedent required by section 2106, Code of 1901 (section 1774, Hemingway's Code), containing several items, is defective because some of the items are defectively described, and the amount demanded is stated in gross apparently covering all of the items, such defect does not render the probate of the entire claim void, if the amount demanded does not exceed the amount due the creditor by the deceased on the items that are properly described.

4. LIMITATION OF ACTIONS. As to continuous contract statute does not begin to run until termination.

A contract for board, lodging, and services, whether express or implied, with no time fixed for payment or for the termination of the contract, is a continuous one, and the statute of limitations is inoperative until the contract is terminated.

5. EXECUTORS AND ADMINISTRATORS. Administrator may pay claim for funeral expenses without probate.

A claim for funeral expenses is not a claim against the deceased, and need not be probated, and it is only claims against deceased which the administrator is forbidden to pay unless probated in view of Code 1906, section 2105 (Hemingway's Code section 1773).

6. EXECUTORS AND ADMINISTRATORS. Duty of administrator to pay funeral expenses.

It is the duty of the administrator to bury deceased and to pay the expenses incident thereto out of the property of the deceased, and, if this expense had been incurred prior to the appointment of an administrator, it becomes a charge against him after his appointment payable out of the property of the deceased.

7. EXECUTORS AND ADMINISTRATORS. Physicians' and druggists' bills should be separately probated.

Physicians' and drug bills necessarily incurred in a decedent's lifetime are debts against the deceased, and, where not paid by claimant at the request of deceased, should be separately probated on the affidavit of the original creditors that they were "just, correct, and owing from the deceased "in accordance with Code 1906, section 2106 (Hemingway's Code, section 1774).

ETHRIDGE, J., dissenting.

HON. R. W. CUTRER, Chancellor.

APPEAL from chancery court of Wilkinson county, HON. R. W. CUTRER, Chancellor.

Suit by R. C. Ramsey against I. F. Gaulden, administrator of Mrs. O. D. Graves, deceased, to have the administrator ordered to sell realty to pay complainant's probated claim against the estate, with answer by the administrator and the heirs. Decree for complainants, and the administrator appeals. Reversed and remanded.

Reversed and remanded.

Bramblett & Bramblett, for appellant.

This was the case of an aged mother living with her daughter. Could there be a closer family relation? To quote 17 Cyc. 412: "Persons in family relation. The courts regard with suspicion and distrust claims brought against a decedent's estate for personal services rendered by relatives, especially where the latter are members of his immediate family or household, as the presumption is that such services, between persons occupying such relations, are intended to be gratuitous, and hence claims against the estate of a decedent made by near relatives for personal services required stronger proof to establish them than ordinary claims by strangers."

Note 60 says: "This rule has been applied to a claim for support or services by a child against the estate of a parent." Citing many cases; also one standing in loco parentis. In the absence of an express contract, the authorities are in accord, that the right to compensation for board and lodging does not exist when relatives live together as members of one family, to quote the exhaustive case noe to Mark, Admr, v. Josie Boardman, v L. R, A. (N. S.) 819:

"The doctrine established by the authorities is that, when relatives live together as members of one family, or as one household, the right to compensation for board and personal services does not exist in the absence of an express contract; but, when such relation does not exist, an implied contract to pay may arise. Thus in Disbrow v. Durand, 54 N. J. L. 343, 33 Am. St. Rep. 678, 24 A. 545, the facts show that a brother and sister lived together for more than twenty years, until the brother's death. The sister, who was a widow, had no means of subsistence, and refused to live with her son, preferring to live with her brother as his housekeeper. There was no proof that the subject for her service was ever discussed or contemplated by either of them. In denying the sister's right to recover for her services, the court said: 'In order to recover for the services the plaintiff must affirmatively show, either an express contract for the remuneration existed, or that the circumstances under which the services were rendered were such as exhibit a reasonable and proper expectation that there would be compensation. The reason of this exception to the ordinary rule is, that the household family relationship is presumed to abound in reciprocal acts of kindness and good will, which tend to the mutual comfort and convenience of the family, and are gratuitously performed; and, where that relationship appears, the ordinary implication of a promise to pay for services does not arise, because the presumption which supports such implication is nullified by the presumption that between members of a household services are gratuitously rendered." Many cases are cited.

Claim barred by statute of limitations. Even had the close relation of mother and daughter between decedent and claimant's wife living together in one family not existed and even had there been an express or implied contract still this claim is barred by the statute of limitation which we respectfully submit we can demonstrate to the court. In doing this we ask the court to follow only one case: Duffy v. Kilroe (Botto case), 116 Miss. 7.

We first ask the court to compare the claim in this case which is attached to claimant's petition, page 4, record, with the claim in the Botto case. This comparison reveals at once that the Botto account is better itemized than the account before the court.

In the Botto case the year and months, but no days are given, while in this case no days, no months and no years are given--Merely the dates, April 20, 1913, to April 20, 1916, and nothing else. In the Botto case the first charge was:

1908--April,--63 visits at $ 5.00

$ 315.00

4 visits at $ 10.00

40.00

$ 355.00

A total of sixty-seven visits for April--probably counsel would argue that this Botto account shows on its face that these visits were not made on one day, April 1st, but throughout the month of April. However, the supreme court said: "It is not necessary for the account to be so minutely itemized in order for the appellee to recover (18 Cyc. 480; Lehman v. Powe, Miss. 455, 49 So. 622); but because of appellee's failure to so itemize it, construing as we must, the account most strongly against him, the true date of each item thereof must be held to be the first day of the month in which it is charged, and the statute of limitation must be applied accordingly." P. 11.

As stated, the only dates in the account before the court being April 20, 1913, to April 20, 1916, the due date of each item thereof must be the first day of the period in which it is charged, namely, April 20, 1913.

We respectfully submit that the Botto case is conclusive authority on this question and we hesitate to discuss it further. However, let us consider this question in another light. Opposing counsel will probably argue as was done in the court below, that this account shows on its face a monthly charge of thirty dollars. If this argument is made, then the cause of action had accrued prior to decedent's death for every month's board--including the last month, if we must construe the account most strongly against the claimant; the cause of action accrued for the last month prior to decedent's death although on the same date--but in any event it was due at the date thereof, and there was nothing to prevent the running of the statute of limitations.

Mrs Graves died on April 20, 1916. Petitioner's claim was filed on January 2, 1919, two years and eight months after the last date on petitioner's (appellee) account, April 20, 1916. Therefore, taken in this light, the charge of thirty dollars, for every month of the account is barred except the last four months. Section 3100 of the Code of 1906 provides: "In all actions brought to recover the balance due upon a mutual and open account, where both parties are merchants or traders, the cause...