In re Baker's Estate
| Decision Date | 26 May 1944 |
| Docket Number | 31663. |
| Citation | 14 N.W.2d 585,144 Neb. 797 |
| Parties | In re BAKER'S ESTATE. BAKER v. KIRWIN. |
| Court | Nebraska Supreme Court |
Syllabus by the Court.
1. The general rule is that if payment for services was to be made by a conveyance or devise of property by decedent, but he refused or neglected to perform the agreement in his lifetime, and the amount to be paid for such services was not agreed upon, then the person rendering the same is entitled to recover the reasonable value thereof.
2. The presumption of gratuity which is said to exist with reference to services rendered and received between closely related persons is entirely rebuttable by circumstantial as well as direct evidence, and such presumption diminishes in direct proportion to the remoteness of the degree and nature of the family relationship and the character of the duties performed.
3. Such presumption is not conclusive and recovery is permitted for services rendered if the evidence shows that they were rendered under an express contract, either written or oral to pay for them, or where there was an implied agreement or contract to pay as when the circumstances are such that a mutual intention, understanding or expectation that the services should be paid for is a reasonable and just conclusion established by clear and satisfactory evidence.
4. Where services are rendered under a contract of employment which does not fix the term of service or the time for payment, the contract is continuous and the statute of limitations does not commence to run until the employee's services are terminated.
5. A person who has filed a claim against the estate of a deceased person for services performed under a contract is not incompetent to testify to independent acts which he performed when the deceased had no personal connection with the act and as to which the deceased did not participate.
6. If it is shown by satisfactory proof that the originals of letters or telegrams have been lost or destroyed then secondary evidence of their contents becomes admissible. Their loss or destruction need not be proved beyond possibility of mistake as the court is vested with a judicial discretion in the matter and it is enough if the testimony satisfies the court of the fact with reasonable certainty.
7. If letters or telegrams are accidentally destroyed by a party without fault secondary evidence may be given of their contents, and even if their destruction is voluntary secondary evidence of their contents may be given if the circumstances accompanying the act are free from suspicion of intent to defraud and consistent with an honest purpose.
8. Ordinarily the rule is that their loss or destruction should be proved by the last custodian of the instruments unless his absence is satisfactorily explained or his disqualification appears, as in cases like the one at bar, in which event the proof may be made by any competent witness who has knowledge of the facts.
9. Persons engaged in performing services of the same character as those to be valued, and persons who have knowledge of the business in and for which the services have been rendered and of their value, may give their opinion as to the value of the services.
Morrow & Miller, of Scottsbluff, for appellant.
Raymond & Sheldon, of Scottsbluff, for appellee.
Heard before SIMMONS, C. J., and PAINE, CARTER, MESSMORE, YEAGER CHAPPELL, and WENKE, JJ.
Appeal is taken from an allowance of the claim of Roy R. Baker against the estate of James O. Baker, deceased, for the reasonable value of services rendered the deceased during the latter years of his lifetime. Hereinafter appellant will be designated as defendant, and appellee as plaintiff. The claim was allowed in the county court and upon appeal to the district court a jury affirmed the award by returning a verdict for plaintiff in the sum of $10,950. The assignments of error are that the verdict is not sustained by the evidence and is contrary to the instructions of the trial court; that the trial court erred in giving and refusing to give certain instructions, and in the admission of evidence; all of which we decide are without merit.
The petition on appeal to the district court alleged, in substance, that in September, 1935, plaintiff entered into an oral contract with James O. Baker to work for him and render certain services consisting of the management of his farms, general business, and personal affairs, in pursuance of which plaintiff commenced his duties on November 1, 1935, and continued in such employment until December 2, 1941, the date of the death of James O. Baker; that the reasonable value of such services rendered was $10,950, no part of which had been paid; that the claim and cause of action were just and after allowing all credits, there was due thereon $10,950 for which plaintiff prayed judgment and allowance. The answer denied generally the allegations of plaintiff's petition and alleged, in substance, that plaintiff was a nephew of deceased, and during the period mentioned lived with deceased in a family relationship; that if any services were rendered to deceased they were fully paid for during his lifetime, and that the statute of limitations barred the claim. Plaintiff's reply admitted that he was a nephew of the deceased, but denied generally all other allegations of the answer which did not admit the allegations of plaintiff's petition.
The record discloses that defendant offered no affirmative evidence disputing the evidence introduced by plaintiff, except one witness whose testimony is devoted exclusively to the question of the value of the services rendered by plaintiff. All other evidence, facts and circumstances are unanswered and uncontradicted.
Briefly, the evidence discloses that plaintiff was a nephew who had never theretofore occupied an intimate association or family relationship with deceased. He was a man of maturity and business experience, having for many years maintained a home and successfully managed an independent real estate business of substance in Chicago, Illinois, before entering the services of deceased. Because of failing health and eyesight, the deceased had for some time previous to September, 1935, consistently importuned plaintiff to come to Mitchell, Nebraska, and assume responsibility for the management and supervision of his extensive and substantial property, business, and personal affairs. In September, 1935, upon telegraphic request of deceased, he and plaintiff had a business conference, following which the plaintiff abandoned his home and business interests in Chicago, and went to Mitchell, Nebraska, the residence of deceased, when and where he assumed such duties. Before plaintiff's arrival deceased informed many persons that his nephew was coming out from Chicago to supervise and manage his property, business, and personal affairs for him. Upon plaintiff's arrival deceased presented him to many of his friends and business associates as his nephew, of whom he had previously spoken advising them that plaintiff would thenceforth have charge of all his business affairs, all of which in the future should and would be conducted by and through plaintiff. Deceased made many and various statements and declarations to plaintiff by letters, and to other persons orally, some of which were in plaintiff's presence, clearly indicating a mutual intention that plaintiff was to be amply compensated for his services, although there appeared to be no fixed or agreed rate of compensation which he was to receive. The plaintiff satisfactorily devoted his exclusive time and effort to the services of deceased without the payment of compensation during the entire period of approximately six years, until December 2, 1941, the date of his demise, and the evidence discloses that the reasonable value of such services was at least the amount of the verdict or in excess thereof. Plaintiff's petition supported by this evidence brings the case almost squarely within the rules announced in Anderson v. Estate of Akins, 99 Neb. 630, 157 N.W. 334, and the authorities from other jurisdictions in similar cases.
Because of the statute, Comp.St.1929, sec. 20-1202, which prohibits a claimant against an estate from testifying to any transactions or conversations with the deceased, ordinarily such claims for services rendered the deceased in his lifetime must of necessity be proved in large part by declarations and admissions of the deceased made to others and by indirect and circumstantial evidence. See In re Estate of Skade, 135 Neb. 712, 283 N.W. 851; Dame, Probate and Administration, 3d Ed., 415, sec. 404.
Statements made by deceased in his lifetime and appearing in the evidence here to the effect that he would give plaintiff an interest in his property and business, or would convey or devise property to him, while not independently enforceable and not offered here for that purpose, since this is not a suit for specific performance, were admissible to rebut any presumption that the services were rendered gratuitously and permit recovery for the reasonable value of his services. See 21 Am.Jur. 567, sec. 327; In re Estate of Kessler, 87 Wis. 660, 59 N.W. 129; Laughnan v. Estate of Laughnan, 165 Wis. 348, 162 N.W. 169; Anderson v. Estate of Akins, supra.
The general rule is that if payment for services was to be made by a conveyance or devise of property by decedent, but he refused or neglected to perform the agreement in his lifetime, and the amount to be paid for such services was not agreed upon then the person rendering the same is entitled to recover the reasonable value thereof. See Dame, Probate and Administration, 3d Ed., 414, sec. 403; 34 C.J.S. Executors and Administrators, p. 118, § 373; 24 C.J. 287; Anderson v....
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