Hurdle v. American Security & Trust Co.

• Decision Date: 06 May 1929
• Docket Number: No. 4751.,4751.
• Citation: 59 App. DC 58,32 F.2d 954
• Parties: HURDLE v. AMERICAN SECURITY & TRUST CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

59 App. DC 58, 32 F.2d 954 (1929)

HURDLE v. AMERICAN SECURITY & TRUST CO.

No. 4751.

Court of Appeals of District of Columbia.

Submitted April 3, 1929.

Decided May 6, 1929.

Hosea B. Moulton and Tench T. Marye, both of Washington, D. C., for appellant.

Stanton C. Peelle, C. F. R. Ogilby, and Paul E. Lesh, all of Washington, D. C., for appellee.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

This is an appeal from a judgment dismissing a bill of complaint filed by appellant as plaintiff against the defendant as executor of the estate of Mary Ann Spencer, deceased.

The plaintiff alleged in the bill that on December 1, 1914, the decedent, Mary Ann Spencer, being aged, infirm, and partially blind, engaged plaintiff to wait upon her and serve her with her meals and to render all such personal services for her as were made necessary by her age and weakness, and as a consideration for such services agreed to bequeath and devise to plaintiff, by her last will and testament thereafter to be made, a one-half interest in her estate both real and personal; that relying upon this agreement plaintiff served decedent as nurse, caretaker, and companion, and by furnishing her with her meals and waiting upon her continually from the date of the agreement until June 3, 1919, a period of four years and six months, when decedent departed this life; that decedent left a last will and testament executed prior to the date of her agreement with plaintiff, but none was found of a date subsequent to the agreement; that the will which was thus found was probated, and defendant is executor thereof, and has retained possession of the assets of the estate; that decedent disposed of her entire estate by this will, without making any provisions for plaintiff therein, and utterly failed to execute any will or codicil to carry out her agreement to compensate plaintiff for her services by means of a testamentary provision as aforesaid; that decedent in her lifetime did not pay plaintiff for her services, nor has defendant as executor ever made such payment in any manner; that plaintiff, in the hope and expectation of finding a later will executed by decedent in performance of her aforesaid agreement, refrained for a considerable time from taking action for the protection of her interests, but on November 12, 1924, having despaired of finding such a will, she brought a suit at law in the Supreme Court of the District of Columbia to recover the reasonable value of the services rendered by her under her agreement with decedent, but the defendant interposed a plea of the statute of limitations in the case, and in October, 1926, a verdict was directed by the court for the defendant; that the plaintiff thereupon noted an appeal, but, being advised that the pendency of such an appeal would jeopardize the bringing of her present suit in equity, she discontinued the prosecution thereof. Plaintiff prayed that defendant as executor aforesaid be required to deliver and convey to plaintiff the full one-half of the real and personal estate of decedent now in its hands, together with the income which has accrued thereon, and for all adequate and proper general relief.

The defendant moved the court to dismiss the bill, upon the grounds (a) that plaintiff had elected as her remedy a suit at law for the reasonable value of the services rendered to decedent, and was thereby barred from maintaining her present suit in equity; (b) that plaintiff's bill disclosed laches such as would prevent recovery herein; and (c) that the judgment at law against plaintiff, as set out in the bill, constituted a complete and final adjudication upon the claim between plaintiff and defendant of the matters and things set forth in the bill. The court sustained this motion and dismissed the bill, whereupon this appeal was brought.

We think the ruling of the lower court was not erroneous. The controlling averments of the bill of complaint disclose that in December, 1914, the plaintiff contracted with decedent to perform certain services for her which were to be compensated at decedent's death by a devise of one-half of her estate; that plaintiff fully performed her part of the contract, but that decedent died in June, 1919, and her last will was admitted to probate in September, 1919, but that it contained no bequest or devise to plaintiff, nor was plaintiff compensated in any manner for her services; that in November, 1924, plaintiff brought an action at law against decedent's estate to recover upon a quantum meruit for the value...