Harrison v. Harrison

• Decision Date: 07 October 1954
• Docket Number: 4 Div. 784
• Parties: Mittie HARRISON v. Benjamin F. HARRISON et al.
• Court: Alabama Supreme Court

Page 620

75 So.2d 620

261 Ala. 648

Mittie HARRISON v. Benjamin F. HARRISON et al.

4 Div. 784.

Supreme Court of Alabama.

Oct. 7, 1954.

Rehearing Denied Nov. 4, 1954.

J. Hubert Farmer, Dotham, for appellant.

Archie I. Grubb, Eufaula, and Crews, Johnston, Clayton, for appellees.

CLAYTON, Justice.

This is an appeal from a decree of the Circuit Court of Barbour County, in Equity, disallowing a claim of Mrs. Mittie Harrison against the estate of Mrs. Lillie Harrison, deceased, in the course of the administration of said estate, which was transferred from the Probate Court on petition of Ben Harrison, one of the heirs at law of Mrs. Lillie Harrison, who was contestant below and appellee here.

Mrs. Lillie Harrison at her death, in February, 1952, owned and occupied a home on Broad Street in Eufaula. Living in the house with her for the last six years of her life was appellant, Mrs. Mittie Harrison, the widow of her deceased son, Mack Harrison, and her three children, who were teen aged at the death of their grandmother. Mrs. Mittie Harrison and the children continued to occupy the house after the death of Mrs. Lillie Harrison. In February, 1953, a year after the death of Mrs. Lillie Harrison, a bill was filed by some of her heirs seeking to sell the house and lot for division of proceeds of sale among the heirs. Mrs. Lillie Harrison left no estate other than the house and lot. Twelve days after the bill was filed, appellant filed her petition in the Probate Court of Barbour County and was appointed administratrix of the estate of Mrs. Lillie Harrison, deceased. On the day following her appointment, she filed a claim for $5,000 against the estate for groceries, cooking, maid service, coal, electricity, and personal services claimed to have been rendered to decedent during the last six years of her life. The claim was contested by Ben Harrison and other adult heirs. The administration was transferred to equity, where the contest was heard, resulting in a decree disallowing the claim, from which claimant has appealed.

It is undisputed that Mrs. Lillie Harrison was 77 years old when she died, that she had some serious illness in 1948, during which she remained in bed a long time and required constant nursing. The testimony was conflicting as to her state of health after the illness and until her death four years later.

Testimony in support of the claim consisted of claimant's own statements, admitted over objection of contestants, giving details of the services she claimed to have rendered to decedent, such as buying, cooking and serving food to decedent and the alleged value of such services; amounts and costs of coal, electricity, and groceries claimed to have been furnished to decedent by claimant. Some of these statements went beyond the rules of admissibility under our decisions construing § 433 of Tit. 7, Code 1940, the so-called 'dead man's' statute. See authorities collated in our recent case of Burnett v. Garrison, Ala., 75 So.2d 144; Box v. Box, 247 Ala. 291, 24 So.2d 28. See, also, Carlisle v. Carlisle, 260 Ala. 283, 70 So.2d 263; Redwine v. Jackson, 254 Ala. 564, 49 So.2d 115; Cousins v. Crawford, 258 Ala. 590, 63 So.2d 670; Haywood v. Hollingsworth, 255 Ala. 453, 51 So.2d 674. But as the final decree denied the claim, no injury resulted from overruling the objections and motions to exclude the statements. However, on appeal, we consider only such part of her testimony as was relevant, material, competent and legal. § 372(1), Tit. 7, Code 1940, Pocket Part; Hyde v. Starnes, 247 Ala. 26, 22 So.2d 421; Sansom v. Sturkie, 245 Ala. 514, 18 So.2d 267; Redwine v. Jackson, supra; Cousins v. Crawford, supra; Haywood v. Hollingsworth, supra.

Mrs. Lottie Shehan, a neighbor, testified that on one occasion about a year before Mrs. Harrision's death, Mittie (the appellant), moved away from the home of Mrs. Harrison, and witness, at the request of Mrs. Harrison, went to Mittie and conveyed a message from Mrs. Harrison that if Mittie would return and live with her, Mrs. Harrison would make a will leaving the house to her for her life. Mrs. Culverhouse, sister of appellant, testified that she heard Mrs. Harrison say she was going to leave what she had to Mittie. A number of neighbors and friends testified to the fact that Mittie was good to Mrs. Harrison and waited on her when she needed it. Max Brazzel, a grocer, testified to the size of appellant's grocery bill as being $80 to $100 per month.

For the contestants, appellees, three sons of Mrs. Harrison and their wives testified that Mrs. Harrison had more than enough income to support her, which consisted of a railroad pension check of $27 per month, rent on the upstairs part of her house, averaging about $15 per month, a welfare check varying from $14 to $21 per month for a good part of the time under consideration, and $5 to $7 average earnings per week from Oppenheimer's for alterations done by her on clothing all the time except the last year of her life. In addition, they testified that some of them regularly paid her water bill and furnished her with groceries, coal for her fireplace, and kerosene for her cook stove. They also testified that they nursed her during her illness in 1948, and that at other times she was in good health for her years and needed no waiting on or other care except during said illness. One of the sons and his wife lived in a house next door to the mother during all of the six years involved. They further testified that $35 to $40 per month would take care of her expenses, and that she had more than enough income to pay them.

A. Lockwood, a grocer, testified that he sent groceries to Mrs. Harrison on an average of twice a week on order of and paid for by Ben Harrison, appellee.

J. M. Barr, bookkeeper for Oppenheimer's, testified that Mrs. Harrison's income from alterations on clothing averaged from $5 to $7 per week.

Van Allison testified that she was the cook at Mrs. Harrison's house for the last 26 years of her life, that of her $7.50 weekly wages, $5 was paid by appellant and $2.50 by Mrs. Harrison; that both Mrs. Harrison and appellant bought groceries, and that they cooked and ate together.

The trial court disallowed the claim in its entirety. The decree was such a final judgment as will support an appeal. Tit. 61, § 216, Code 1940; Hyde v. Starnes, supra; Box v. Box, supra.

The essential basis of appellant's claim is a contract, express or implied, between claimant and decedent. Box v. Box, supra, Duncan v. Johnson, 239 Ala. 183, 194 So. 528; Coleman v. Adkins, 232 Ala. 351, 168 So. 184; Lowery v. Pritchett, 204 Ala. 328, 85 So. 531. The burden of proof rests upon claimant to show such contract. Box v. Box, supra; O'Rear v. Kimbro, 227 Ala. 22, 148 So. 435; Patterson v. Carter, 147 Ala. 522, 41 So. 133.

In the instant case, we have the grandmother, the daughter-in-law, and the three small grandchildren living in the same house, cooking their food together, eating from the same table as one family for at least six years, until the death of the grandmother. The house was owned by the grandmother, and no rent was paid by the daughter-in-law. Clearly, any services rendered or things furnished by the daughter-in-law for the comfort and well-being of the grandmother of her children are presumed to be gratuitous. In our fairly recent case of Box v. Box, 247 Ala. 291, 24 So.2d 28, 31, supra, this court, speaking through the late lamented Justice Brown, said:

"The courts regard with suspicion and disfavor claims brought against an estate for personal services rendered by relatives, especially where the latter are members of decedent's 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 require stronger proof to establish them than ordinary claims by strangers. The rule applies when the family relationship actually existed between claimant and decedent, although there was neither consanguinity, affinity, nor adoption.' 24 Corpus Juris, p. 281, § 881, 34 C.J.S., Executors and Administrators, § 371; Patterson v. Carter, supra [147 Ala. 522, 41 So. 133].

'Such suspicion and disfavor may be overcome by clear and convincing competent evidence showing an expressed agreement by the decedent to pay or proof of facts showing an expectation on the part of the decedent at the time the services were rendered to pay for such services and such expectation on the part of the claimant at the time the services are rendered to receive such payment. Croft v. Croft, supra [219 Ala. 94, 121 So. 82]; Hyde v. Starnes, supra [247 Ala. 26, 22 So.2d 421]; Willingham v. Starnes et al., supra [247 Ala. 30, 22 So.2d 424].'

Disregarding illegal testimony, we have in the most...