Hyde v. Honiter

• Citation: 158 S.W. 83
• Parties: HYDE v. HONITER.
• Decision Date: 24 June 1913
• Court: Court of Appeal of Missouri (US)

158 S.W. 83

HYDE v. HONITER.

St. Louis Court of Appeals. Missouri.

June 24, 1913.

1. EXECUTORS AND ADMINISTRATORS (§ 431)— NOTICE OF CLAIM—WAIVER.

In an action to enforce a claim against the estate of a decedent, where the claimant and the administrator go to trial by agreement, the question of service of notice of the claim upon the administrator is waived.

2. EXECUTORS AND ADMINISTRATORS (§ 256)— CONCLUSIVENESS OF RECORD—RECITAL.

A recital, in the judgment of the probate court allowing a claim against an estate, that the case came on for trial by agreement of the parties is conclusive upon appeal.

3. EXECUTORS AND ADMINISTRATORS (§ 221)— SERVICES BETWEEN MEMBERS OF A FAMILY.

The law implies no promise to pay for services rendered by one member of a family to another, but on the contrary presumes that such services were rendered gratuitously.

4. EXECUTORS AND ADMINISTRATORS (§ 221)— DISPUTED CLAIMS — EVIDENCE — SUFFICIENCY.

In an action by a granddaughter against the administrator of her grandmother's estate for services rendered in caring for the grandmother prior to her death, evidence held sufficient to warrant the jury in finding that there was a mutual understanding that the services should be paid for.

5. EXECUTORS AND ADMINISTRATORS (§ 221)— SERVICES RENDERED TO DECEDENT—PERSON IN FAMILY RELATION—PROMISE BY DECEDENT.

In the trial of a disputed claim for services rendered in caring for the claimant's grandmother, statements of the grandmother that the plaintiff was to be "paid" for her services show an intention to compensate her and not to bestow a bounty upon her, and it was immaterial that the payment was to be made out of the estate after the death of the grandmother.

6. LIMITATION OF ACTIONS (§ 53)—RUNNING ACCOUNT—ACTION FOR SERVICES.

Where the granddaughter of a decedent made a claim for services rendered in caring for decedent, the fact that different rates of compensation were charged for different periods of time does not change the character of the account as a continuing running account, the earlier items of which are not barred by the statute of limitations.

7. WITNESSES (§ 146)—COMPETENCY —INTEREST —ALLOWANCE OF CLAIM—WIFE OF DISTRIBUTE.

In an action against an administrator on a disputed claim, a distributee of the estate has such an interest in the cause as to render his wife incompetent as a witness.

8. EXECUTORS AND ADMINISTRATORS (§ 221)— CLAIM FOR SERVICES—FAMILY RELATION.

Where plaintiff's grandmother came to the home of her son-in-law in 1894 after the death of plaintiff's mother, plaintiff being then a girl of 14 years, in pursuance of a promise to look after the children, and remained there till her death in 1910, during which time plaintiff married and was absent for three years, returning to her father's house with her child on her husband's death, the family being composed, during such absence, of plaintiff's grandmother, father, and his two younger children, the question whether the family relation existed between plaintiff after her return and her grandmother was improperly submitted to the jury on trial of a claim against the grandmother's estate to recover compensation for services rendered to the grandmother.

9. WORDS AND PHRASES—"FAMILY."

A family is a collective body of persons who live in one home, under one head or management.

10. APPEAL AND ERROR (§ 882)—INVITED ERROR —INSTRUCTIONS.

The distributee cannot complain of error in submitting to the jury the question whether the granddaughter, who claimed compensation for services to decedent, and the decedent were members of the same family, where he requested instructions which submitted that issue to the jury.

11. EXECUTORS AND ADMINISTRATORS (§ 451) —DISPUTED CLAIMS—ACTIONS—INSTRUCTIONS.

In an action upon the claim of a grand-daughter for care of her deceased grandmother, an instruction that, if the jury found that the plaintiff and decedent were not members of the same family at the time the services were rendered, the law implied a promise to pay is erroneous, since, aside from the family relation, the relationship of the parties and the circumstances in which the services were rendered were such as to lead a person to believe that they were rendered gratuitously, and therefore no promise to pay was implied.

12. TRIAL (§ 296)—ERROR IN INSTRUCTIONS— CURE BY OTHER INSTRUCTIONS.

Such error was not cured by other instructions, which required the jury to find that the plaintiff intended to charge for her services before she could recover, but did not also require them to find that the deceased understood or ought to have understood that compensation was to be made.

13. EXECUTORS AND ADMINISTRATORS (§ 256) —MODIFICATION OF JUDGMENT—CORRECTION OF ERRORS.

A judgment sustaining a disputed claim against an estate for services rendered a decedent,

which is improper only because it orders execution to issue therefor, need not be reversed on that ground but may be corrected by the Court of Appeals.

Appeal from Circuit Court, Scotland County; C. D. Stewart, Judge.

Action by Zillah Hyde against Parlia C. Honiter, administrator. From a judgment allowing the plaintiff's claim against the estate, Charles F. Collins, a distributee of said estate, appeals. Reversed and remanded.

H. E. Churchill and E. R. McKee, of Memphis, for appellant. J. E. Luther, of Memphis, for respondent.

ALLEN, J.

This action was begun in the probate court of Scotland county by plaintiff, respondent here, exhibiting the following demand against the estate of Sarah A. Collins, deceased, to wit:

                To services rendered in caring for and
                 nursing Sarah A. Collins during her lifetime
                 beginning on April 1, 1901, and continuing
                 for a period of four years to April
                 1, 1905, at two dollars per week, including
                 etc.........................................$  416.00
                To services same as above from April 1
                 1905, to April 24, 1910, at three dollars per
                 week.........................................  789.00
                                                               ________
                                                              $1,205.00
                

A written waiver of service of notice of the presentation of the claim in the probate court was signed in the name of the administrator, "by J. M. Jayne, his attorney." The probate court allowed plaintiff's claim for the full amount of her demand. Upon appeal from the probate court the cause was tried de novo, in the circuit court, before the court and a jury, resulting in a verdict for plaintiff in the sum of $1,205. Judgment was entered accordingly, from which the appellant, a distributee of the said estate of Sarah A. Collins, deceased, has appealed to this court.

The plaintiff, Mrs. Zillah Hyde, is a granddaughter of Sarah A. Collins, deceased. It appears that the deceased had two children, viz.: The appellant, Charles F. Collins, and Mrs. Mary Honiter, the mother of plaintiff. The evidence discloses that in 1894 the Honiter family, composed of Mr. and Mrs. Honiter and their three children, of whom this plaintiff was the eldest, lived upon a farm in Scotland county, and that the deceased lived with her brother on a farm belonging to her a short distance from the Honiter farm. During this year (1894) Mrs. Mary Honiter, plaintiff's mother, died, and upon her death her mother, Mrs. Sarah A. Collins, deceased, came to live with the Honiter family. There is evidence in the record to the effect that this was in fulfillment of a promise made to her daughter, Mrs. Honiter, upon the latter's deathbed, that the grandmother, Mrs. Collins, would look after Mrs. Honiter's children; and there is some testimony that Mr. Honiter, plaintiff's father, requested the grandmother to come and live at his home. At this time the plaintiff was a girl about 14 years of age. The grandmother continued to live at the Honiter home, and in the latter part of 1897 plaintiff married one Hyde, going elsewhere to live with her husband. Early in 1901 her husband died, and on or about the 1st of April of that year she returned to her father's home, with a child born of the marriage, and continued to reside there until the grandmother's death in 1910. The evidence discloses that the grandmother, Mrs. Sarah A. Collins, remained in this home from the time she entered it in 1894 until her death in 1910, a period of approximately 16 years.

It appears that in 1896 the grandmother met with an accident by being thrown out of a spring wagon and both of her wrists were injured. There is evidence that both wrists were broken, but according to other testimony the injuries were not of such a serious character. There is considerable conflict in the testimony with respect to the extent and permanency of these injuries and how far they disabled the deceased. There is testimony that she was deprived of the use of her arms for a short time only, and other testimony that she could not use them for months even to feed herself, and that she never fully recovered from the injuries. In 1906 she fell, injuring her right hip. Her physician testified that the hip was not broken, as some witnesses said, but wrenched, and the sciatic nerve badly injured. At any rate, there is ample testimony that from and after the time of this injury she was crippled and could not get about to any extent without assistance. The physician testified that the limb was thereafter almost useless. There is evidence that from the time plaintiff returned to her father's home the grandmother was feeble and frail; that she was often sick, and that she always required more or less attention and care; that after the injury to her hip she was practically helpless, unable to care for herself, and required a great deal of care and assistance; and that for a long time before her death she was confined to her bed, requiring almost constant nursing and attention, and her condition such as to require her clothing and bedding to be changed frequently.

There was much testimony to the effect that from the time plaint...