Hubbard v. Ball

• Decision Date: 01 July 1938
• Docket Number: 6512
• Citation: 81 P.2d 73,59 Idaho 78
• Parties: NELLIE WHITE HUBBARD, Appellant, v. LEONARD G. BALL, Executor of the Estate of GEORGE A. WHITE, Deceased, Respondent
• Court: Idaho Supreme Court

81 P.2d 73

59 Idaho 78

NELLIE WHITE HUBBARD, Appellant, v. LEONARD G. BALL, Executor of the Estate of GEORGE A. WHITE, Deceased, Respondent

No. 6512

Supreme Court of Idaho

July 1, 1938

LIMITATION OF ACTIONS-STATUTE OF FRAUDS-EXECUTORS AND ADMINISTRATORS-CLAIMS AGAINST ESTATE-WITNESS-INVENTORY.

1. A duly filed claim for services rendered in caring for testator continuously until his death pursuant to an oral agreement entered into more than four years prior to testator's death was not barred by four-year limitation, since limitation did not commence to run until end of period that services were performed. (I. C. A., secs. 5-217, 15-610.)

2. A claim for services rendered pursuant to an oral agreement to care for testator during his lifetime was not rendered unenforceable by the statute of frauds as an agreement for services not to be performed within a year. (I. C. A., sec 16-505, subd. 1.)

3. An agreement which, by its terms, is not to be performed within a year from the making thereof is invalid under the statute of frauds, unless the agreement or some note or memorandum thereof be in writing and subscribed by the party charged or his agent, but where the termination of a contract is dependent on the happening of a contingency which may occur within a year, it is not within the statute of frauds, although contingency does not take place until after expiration of a year. (I. C. A., sec. 16-505, subd. 1.)

4. A claimant who sought to recover in the probate court on an oral contract for services rendered in caring for testator during his lifetime was not precluded from recovering in the district court because he sought recovery in the district court on a quantum meruit.

5. A claimant need not specify whether his claim against a decedent's estate is based on an express contract or a quantum meruit.

6. Under statute disqualifying as a witness any party to a proceeding against a testator on a claim against a decedent's estate as to any communication or agreement not in writing, occurring before the death of such decedent a claimant who sought to recover for services rendered in caring for testator during his lifetime was competent to testify as to the services performed and as to the value thereof. (I. C. A., sec. 16-202.)

7. Machinery which testator listed in his will but which he subsequently sold to his executor in cancelation of a debt was not improperly omitted from inventory of his estate.

8. An executor who permitted tenant to continue in possession of land belonging to the estate, at expiration of one-year lease in mistaken belief that lease was for three years, without a new lease being executed, and without approval of the probate judge, was not chargeable with unlawful renting of the land particularly where it was not shown that rent collected was inadequate or that estate had suffered by failure to secure execution of a formal lease approved by the probate judge.

9. A verification of a claim by bookkeeper of claimant stating that account for which claim was made was a true and accurate copy of account as it appeared on claimant's books was sufficient to justify allowance of credit to executor for having paid the claim, in absence of showing that estate suffered loss by reason of payment, although statute required that claim be supported by affidavit stating that amount was justly due, that no payments had been made which were not credited, and that there were no offsets to the knowledge of the affiant. (I. C. A., sec. 15-605.)

10. An executor's reference in his account to amount received by him as testator's attorney-in-fact, from a tenant, prior to testator's decease, to explain receipt of balance from tenant after testator's death, was not subject to investigation further than to show what portion remained unexpended and came into his hands as executor, and evidence with relation to amount received as attorney-in-fact was incompetent, but, if admissible, furnished no basis for charging executor with amount allegedly retained by him, where evidence supported finding that amount was not expended for personal use or benefit. (I. C. A., sec 15-405.)

11. Under will directing executor to pay expenses of testator incurred by sickness, executor was authorized to pay for nursing of testator during his last illness, notwithstanding absence of verified claim. (I. C. A., secs. 15-605, 15-801, 15-1114, 15-1127.)

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

Appeal from judgment of district court reversing order of probate court disallowing, in part, the first account of the executor of the estate of George A. White, deceased, and removing said executor. Judgment affirmed.

Hoyt Ray, for Appellant.

Claimant is incompetent to testify upon any oral claim against the estate arising before death of the deceased and claimant must independently prove contract for personal services and reasonable value of services. (Bancroft Prob. Prac., secs. 895, 896; Brown v. Daly, 33 Mont. 523, 84 P. 883; Estate of McVay, 14 Idaho 64, 93 P. 31; Farnsworth v. Hatch, 47 Utah 62, 151 P. 537; Hartley v. Bohrer, 52 Idaho 72, 11 P.2d 616; Nelson v. Bruce, 51 Idaho 378, at p. 385, 6 P.2d 140.)

Executor must include in inventory, his debts due the estate and property in his possession belonging to estate, and is chargeable with entire estate. (Bancroft Prob. Prac., 502; Estate of Fritz, 130 Cal.App. 725, 20 P.2d 361; State Ins. Fund v. Hunt, 52 Idaho 639, 17 P.2d 354; secs. 15-404 and 15-405, 16-202, 62-1041, I. C. A.)

A. A. Merrill, for Respondent.

If the executor or administrator is a creditor of the decedent, his claim, duly authenticated by affidavit, must be presented for allowance or rejection to the probate judge, and its allowance by the judge is sufficient evidence of its correctness and it must be paid, as other claims, in due course of the administration. (Sec. 15-621, I. C. A.; Estate of Coryell, 16 Idaho 201, at p. 215, 101 P. 723; Barton v. Dyer, 38 Idaho 1, at p. 10, 220 P. 488; Hartley v. Bohrer, 52 Idaho 72, 11 P.2d 616; 28 R. C. L. 668.)

MORGAN, J. Givens, J., Ailshie, J., concurring. BUDGE, J., HOLDEN, C. J., Concurring in Part and Dissenting in Part.

OPINION

MORGAN, J.

George A. White died, testate, March 27, 1936. Leonard G. Ball, respondent, is executor of his will, and Nellie White Hubbard, appellant, is a devisee and legatee named therein. Respondent filed a claim against the estate for $ 1,125, $ 1,000 thereof being claimed for services rendered by him in caring for the testator, and for his property, during his lifetime. One hundred twenty-five dollars of the claim was for expenses incurred in visiting the testator, in North Carolina, at his written request and on his written promise to pay respondent for expenses incurred in making the trip.

Appellant contends the $ 1,000 item is barred by I. C. A., sec. 5-217, being the four-year statute of limitations, which relates to contracts, obligations and liabilities not founded on written instruments. This contention is based on the fact that the services rendered by respondent to White, and in caring for his property, were performed pursuant to an oral agreement, or understanding, between them, entered into in 1931. Section 15-610 is as follows:

"No claim must be allowed by the executor or administrator, or by the probate judge, which was barred by the statute of limitations, at the time of the death of the decedent. . . . "

The evidence shows the services were continuous, as needed, from their commencement in 1931 until White's death. The period of limitation commenced to run at the end of the performance of the services (McCarthy v. Paris, 46 Idaho 165, 267 P. 232), therefore, the claim is not barred.

Appellant also insists the claim is rendered unenforceable by the statute of frauds. She apparently relies on sec. 16-505, subd. 1, as follows:

"In the following cases the agreement is invalid, unless the same or some note or memorandum thereof, be in writing and subscribed by the party charged, or by his agent. Evidence therefore, of the agreement can not be received without the writing or secondary evidence of its contents:

"1. An agreement that by its terms is not to be performed within a year from the making thereof."

This contention cannot be maintained. The rule applicable is thus stated in the second section of the syllabus in Seder v. Grand Lodge, A. O. U. W., 35 Idaho 277, 278, 206 P. 1052:

"An agreement which, by its terms, is not to be performed within a year from the making thereof, is invalid and void unless the same, or some note or memorandum thereof, be in writing and subscribed by the party charged or his agent. But where the termination of a contract is dependent upon the happening of a contingency which may occur within a year it is not within the statute of frauds, although the contingency may not take place until after the expiration of a year." See, also, Darknell v. Coeur D'Alene etc. Transp. Co., 18 Idaho 61, 108 P. 536.

The latter case disposes of another of appellant's contentions, to wit: That respondent has occupied inconsistent positions in that he sought to recover in the probate court on an oral contract with White, for compensation for caring for him and his property, and in the district court on quantum meruit. This court, in the Darknell case, 18 Idaho 61, 67, 108 P. 536, 538, said:

"The only question which seems to arise in the case is whether the plaintiff could recover on a stipulated price or must recover on quantum meruit. The two theories are not inconsistent. Indeed, if the plaintiff should succeed in proving that he rendered the services and should be unable to prove that he had a contract for a specific salary, then he...