Hickman v. Slough

• Decision Date: 05 February 1940
• Docket Number: 34024
• Citation: 187 Miss. 525,193 So. 443
• Court: Mississippi Supreme Court
• Parties: HICKMAN v. SLOUGH

193 So. 443

187 Miss. 525

HICKMAN v. SLOUGH

No. 34024

Supreme Court of Mississippi, Division B

February 5, 1940

Suggestion Of Error Overruled March 4, 1940.

APPEAL from the chancery court of Lafayette county HON. HERBERT HOLMES, Special Judge.

Proceeding by Walter Hickman against C. E. Slough, temporary executor of the estate of J. F. Sullivan, deceased, for services rendered deceased. From an adverse decree, Walter Hickman appeals. Reversed, and decree entered for plaintiff.

Reversed, and decree here for appellant.

J. W Price and J. W. T. Falkner, both of Oxford, for appellant.

The general doctrine is that where one renders services to another in expectation of a legacy but relying on the other's generosity, no action lies if the latter dies without giving the legacy; but that where it is manifest from the circumstances that it was understood by both parties that compensation was to be made by will, and no such compensation is made, then an action lies for the value of the services.

Bell v Oates, 97 Miss. 790, 53 So. 491; Ellis v. Berry, 145 Miss. 652, 110 So. 211; Martin v. Wright's Adm'rs., 28 Am. Dec. 460, 468.

Where services were rendered under such circumstances that no reasonable person could assume that they were rendered as a gratuity, the law implies a promise to pay reasonable compensation, the intent of the parties being the essence of the transaction.

G. & S. I. R. Co. v. Magee Warehouse Co., 67 So. 648, 109 Miss. 9; Tarver v. Lindsey, 161 Miss 379, 137 So. 93; Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109; In re Burkitt's Estate, 186 So. 834.

The court erred in holding that the claimant (appellant here) had wholly failed to meet the burden required by law with reference to proving his claim.

The court erred in holding that there was no proof of a promise to pay.

The honorable chancellor must have taken a viewpoint that there must be an expressed contract for certainly he would not have held that there was no proof of a promise to pay if he had been thinking in terms of an implied contract such as we are here dealing with. In view of the authorities hereinbefore mentioned, it is evident that no express promise to pay is necessary, although as a matter of fact, the witnesses quoted in the first specification of error made out a promise to pay by Mr. Sullivan which was undenied by the temporary administrator or any of his witnesses.

The court erred in holding that there was no contract to pay. It is evident that the court here meant that there was no express contract to pay.

The court erred in holding that there was no evidence of any action on the part of the deceased that could possibly bind his estate.

The court erred in its judgment that the claim should be disallowed.

We respectfully submit that the case should be reversed and judgment entered here for the amount of appellant's probated claim, and certainly at least for the value of the services as servant and personal attendant, since appellant did not even attempt to prove any payment for this item of the claim.

C. A. Bratton, Bramlett Roberts, James Stone & Sons, and R. L. Smallwood, Jr., all of Oxford, for appellee.

After exhaustive search by all four counsel, we have been unable to locate any case exactly in point on the facts. The questions of law, as we see it, resolve themselves into merely two questions. The first of these is that the claimant has not established his claim by a preponderance of the evidence. The second of these is that this case is merely a decision of the chancellor on controverted questions of fact and that for this reason the decision of the lower court should be affirmed.

We do not deem it necessary to tire the court with a list of authorities to the effect that the claimant must establish his claim by a preponderance of the evidence and to the effect that the decision of the chancellor on a controverted question of fact is binding on this court unless contrary to the great weight of the evidence. These are fundamental and established rules of law and are beyond question.

Argued orally by J. W. T. Falkner, for appellant, and by Phil Stone, for appellee.

OPINION

McGehee, J.

There is here involved a contest of the probated claim of appellant against the estate of J. F. Sullivan, deceased, for services rendered him by appellant in the capacity of a faithful negro servant and personal attendant, during the five years immediately preceding the death of the decedent, which occurred on December 23, 1937. The claim was disallowed by the Chancellor on the ground, as stated in his finding of fact, that the evidence offered in support thereof was insufficient to prove a contract or promise to pay for the services, and that it failed to show that the deceased had taken any action in regard thereto which could bind his estate.

The testimony disclosed that at the beginning of the year 1933 Mr. Sullivan had attained the age of 82 years, and was a widower who lived alone about one mile from the city of Oxford, in Lafayette county; that at times he was sick and unable to care for himself; that he was almost deaf, and could be talked to only by means of a tube trumpet; that he had no near relatives, except some nephews and nieces, who did not live near enough to his home to look after his daily needs; that his adopted son was employed by certain road construction companies in various counties from time to time, and consequently was unable to be at home, except for very brief visits; and that therefore it became necessary that this lonely old man should have some one with him, as an attendant and servant, to bring in his wood and water; to drive a car, and help him in and out of the same when he went to town or visited his small farms, as he continued to do until shortly before his death at the age of 87 years; also to work his garden when necessary; and to minister unto him in time of sickness, or when weak from the infirmities of age--lifting, bathing and dressing him when necessary.

In that situation, he turned to the appellant, Walter Hickman, whose loyalty and faithfulness proved sufficient to meet this demand. It is shown that this...