Hensley v. Hilton

• Decision Date: 13 May 1921
• Docket Number: No. 23673.,23673.
• Citation: 191 Ind. 309,131 N.E. 38
• Parties: HENSLEY v. HILTON.
• Court: Indiana Supreme Court

191 Ind. 309

131 N.E. 38

HENSLEY

v.HILTON.

No. 23673.^*

Supreme Court of Indiana.

May 13, 1921.

Appeal from Circuit Court, Owen County; Robert W. Miers, Judge.

Claim by Elbert P. Hilton against the estate of William J. Smith, deceased; Theodore L. Hensley, administrator. From judgment for claimant, defendant administrator appeals. Judgment reversed, with instructions to grant new trial.

Myers, Gates & Ralston, of Indianapolis, Inman H. Fowler and Thomas G. Spangler, both of Spencer, and Homer Elliott, of Martinsville, for appellant.

Hickam & Hickam, of Spencer, for appellee.

WILLOUGHBY, C. J.

The appellee, Elbert P. Hilton, filed a claim against the estate of William J. Smith, deceased. The substantial averments of the claim are as follows:

That said William J. Smith on or about the - day of - was married to one Fannie Hilton, who was a sister of John Hilton, the father of this claimant, and that they lived together as husband and wife, without having any children born to them, until the 26th day of March, 1912, when his wife, the said Fannie Smith, died childless; that the said William J. Smith also died childless on the 2d day of April, 1912, each leaving neither father nor mother surviving; that soon after the said marriage the said William J. Smith and wife settled on a farm in Grant county, Ind., and, being childless, the said William J. Smith and wife entertained a very strong affection for this claimant, who was then only 9 years of age, and proposed to this claimant and to his father and mother that if this claimant would give up his own home and his parents and go and live with the said William J. Smith and wife until he was grown, the said William J. Smith would make him his only heir and would will or convey to him all of his property so that he would receive the same upon the death of said William J. Smith and his wife; that this claimant and his parents were very much attached to each other and at first declined said proposal, the parents declining to give up this claimant as their child on account of their parental affection for him, and this claimant being unwilling to abandon his home and his parents, to whom he was affectionately attached. The claimant further alleges that said William J. Smith and his wife by frequent visits to his said home and parents, and by cultivating the affections of the said claimant and by frequent repetitions of said promises, and by assuring this claimant and his parents that he should have a good home with them, that he should receive and that said Smith would give him a good education, and that upon the death of the said William J. Smith and his wife the claimant should receive and that he, said Smith, would will to him, this claimant, the whole of his estate, at the time amounting in real and personal property to as much as $15,000 or more. Finally they induced this claimant and obtained the consent of his said parents to accept said proposal, and this claimant did, in consideration thereof, leave his said home and go to live in the home of said William J. Smith on or about the 15th day of October, 1891, and did live with them for the succeeding period of about nine years; that during the said period he resided with the said William J. Smith and his said wife as a member of their own home, and that he worked for said decedent at all times on his farm and performed all kinds of labor for him as required and as contemplated by said agreement, and waited on him and his said wife when sick and in health, and in all ways aided and assisted them in a kind and affectionate manner and to their comfort and satisfaction so far as he was able to do so; that the said claimant at the age of 19 years, with the consent and encouragement of said William J. Smith, entered a commercial school, and afterwards with the consent of said Smith became a telegrapher and bookkeeper in the telegraph and railroad service. And the claimant further alleges that the said William J. Smith during said years of the said claimant's said service, and at all times thereafter and until the time of his death, accepted the claimant's said services as a full performance by this claimant on his part of the terms of the said agreement, and repeated his said promise and assurance that he would before his death execute his will, and thereby make this claimant his legatee and would thereby leave to this claimant, at the death of himself and his wife, all of his said property, which property at the time of his death and at the time of said promises and agreement amounted in value to the sum of $40,000 and more. But the claimant further alleges that the said Smith on or about the 31st day of March, 1912, after the death and after the burial of his wife, which occurred on the previous day, and after he had engaged an attorney to prepare his said will for said purpose, suddenly became violently ill, and on the 2d day of April, 1912, died without executing said will or in any way making provision for the transfer or conveyance by will or deed of any of his said property to this claimant or paying or providing for the payment to claimant for the services so rendered by him to said decedent under said agreement. And said claimant further alleges that his said services as a laborer and companion and as a member of the household of said decedent were and are of the value of $10,000, all of which is due and unpaid.

This complaint was answered by a general denial, and upon the issue thus joined the cause was submitted to a jury for trial, which returned a verdict for the claimant of $7,100. Judgment was rendered on the verdict of the jury, and from such judgment the appellant appealed and assigns as error that the court erred in overruling appellant's motion for a new trial.

The appellant claims that the giving of instruction No. 13 was error, because it gave the jury a false measure by which to ascertain the value of the service for which claimant sought to recover in this action. The instruction is as follows:

“The measure of damages in this case, if you find for the plaintiff, is the reasonable value of the service rendered under the contract. In ascertaining the amount of damages, you may take into consideration all the surrounding circumstances under which the contract was made; the fact that the decedent and his wife were without any children of their own; the fact, if it is a fact, that they desired the companionship, society, love, and affection of the claimant; the fact that the decedent desired and needed his help in the home to wait on him when sick, do errands around the home for him, and perform such acts of service and companionship about the home as could not or would not be performed by ordinary help in such capacity, if you find that such was the fact; you may consider the value which the decedent and his wife also placed upon the companionship as shown by the evidence, if any, love and affection of defendant as a child; and you may also take into consideration such value as the decedent and his wife placed upon such service as shown by the evidence, if any, in determining what such service was actually worth to the decedent during the time the same was rendered; and from these and all other facts and circumstances in the case, you may assess such damages as in your judgment will fully compensate the plaintiff for all of the service, companionship, association, and labor performed in said home for the use and benefit of said decedent and his wife.”

[1][2] The contract sued on in this case...