In re McKinney's Estate

Citation175 Or. 28,149 P.2d 980,151 P.2d 459
Decision Date01 July 1944
CourtSupreme Court of Oregon
                  Agreement to pay reasonable value of services, note, 92 A.L.R
                1396. See, also, 4 Am. Jur. 494; 21 Am. Jur. 567
                  34 C.J.S., Executors and Administrators, § 453

Before BAILEY, Chief Justice, and BELT, KELLY, LUSK and HAY, Associate Justices.

Appeal from Circuit Court, Marion County.

E.M. PAGE, Judge.

In the matter of the estate of Ann Eliza McKinney, deceased, wherein Alice N. Tracy filed a claim for services rendered to decedent. The claim was allowed by the county court and other heirs of decedent appealed to the circuit court from the judgment allowing the claim. Before the appeal was heard, the claimant died and Comyn C. Tracy succeeded to claimant's interest. From a judgment of the circuit court for the full amount of the claim without interest, the Pioneer Trust Company, administrator de bonis non of the estate of Ann Eliza McKinney, deceased, appeals and Comyn C. Tracy cross-appeals.


W.C. Winslow, of Salem, for appellant and cross-respondent.

George A. Rhoten, of Salem (Rhoten & Rhoten, of Salem, and Sam F. Speerstra, of Salem, on the brief), for respondent and cross-appellant.


On February 10, 1934, Miss Ann Eliza McKinney died intestate, leaving surviving her as her only heirs at law four sisters, two brothers and the children of deceased sisters. Her estate was appraised at $6,129.00. In the administration thereof the claim of her sister, Alice N. Tracy, in the sum of $3,000.00 for services rendered and maintenance furnished by Mrs. Tracy to Miss McKinney from July 1, 1930, until Miss McKinney's death, was presented to and allowed by the county court. The other heirs of the decedent appealed to the circuit court from the judgment allowing that claim. Before the appeal was heard in the latter court Mrs. Tracy died, and her son, Comyn C. Tracy, succeeded to her interest in the claim.

The cause was heard before a jury in the circuit court. A transcript of the testimony of Alice N. Tracy taken in the county court was read to the jury and became a part of the record on this appeal. The hearing resulted in a verdict in favor of Comyn C. Tracy for the full amount of the claim, without interest. From the judgment thereon Pioneer Trust Company, administrator de bonis non of Miss McKinney's estate, has appealed, and Comyn C. Tracy has cross-appealed.

Upon the death of her father Ann Eliza McKinney became the owner of what is referred to in the record as the home place, a farm of about thirty-four acres near Turner, Oregon. She continued to live thereon with her mother until the death of the latter in 1921. Miss McKinney thereafter made her home with one of her sisters, Mrs. Frances O. Ball, until the end of June, 1930.

In the fall of 1928 she leased the home place to Alice N. Tracy and her husband for a period of five years at a cash rental of two hundred dollars a year, and reserved part of the house thereon for her own use in the event that she should return to her farm. Mr. and Mrs. Tracy, however, did not then occupy the house, but continued to live in their own home.

Miss McKinney returned to the home place about July 1, 1930, and remained there until her death. In explaining why her sister returned to her own home, Mrs. Tracy gave the following testimony:

"Q. I see. Now you say you took her to the home place, that is, to her place. How did you come to do that?

"A. She was ailing, and Mr. and Mrs. Ball were ailing, both of them, and Cordell Ball [a son of Mrs. Frances O. Ball] came to my place and said they wasn't able to take care of Ann any longer, she would have to go somewhere else.

"Q. Did you, following that conversation with Cordell, have a talk with your sister?

"A. I did.

"Q. What, if any, arrangement was made between you and your sister at that time?

"A. I went up and told her the circumstances and she said, `Well, where will I go?' I said, `Couldn't you go to your home?' And she said she couldn't go alone, and she said, `Can you go with me?' I said, `Well, I will see.' That was the conversation that happened."

Mrs. Tracy consented to the arrangement suggested by Miss McKinney, and with her husband moved into the house on the home place, to take care of her sister. Their son, however, remained in their own home, living alone until his marriage. After her husband died in 1932, Mrs. Tracy continued to operate the farm, hiring necessary help. On the expiration of the five-years' lease of the farm, in the summer or fall of 1933, a new lease thereof was made, on a crop rental basis.

For several months after she returned to her home Miss McKinney was able to be up and about, but could do very little, if any, work about the place. When she was able to sit up she ate her meals with Mr. and Mrs. Tracy. During the last three years of her life she was in very feeble health and suffered two paralytic strokes. After her second stroke, which occurred in July 1933, until her death, Miss McKinney was almost helpless and Mrs. Tracy had to take care of her room, feed her and at night sleep in her room. All food, supplies and fuel used at the home place were furnished by Mr. and Mrs. Tracy until the death of the former, and thereafter by Mrs. Tracy alone. Miss McKinney contributed nothing toward the expenses of the household.

Mrs. Tracy testified that when she was visiting Miss McKinney at the Ball home in May, 1929, Miss McKinney asked her if she wanted the home place, and she answered that "it wouldn't be a bad proposition", whereupon Miss McKinney said, "I will give it to you." No discussion was ever had thereafter about Miss McKinney's giving the farm to Mrs. Tracy. When she left her own home to take care of her sister, Mrs. Tracy expected, she testified, to be compensated for her services by receiving the home place. In addition to that realty Miss McKinney owned other property, including a farm of about one hundred seventy-five acres. Neither before nor during the time that Mrs. Tracy was taking care of her sister and providing for her, was anything ever said by either of them about compensation therefor to Mrs. Tracy. Nevertheless she certainly expected to be compensated for her services, Mrs. Tracy testified.

The administrator de bonis non assigns as error the refusal of the court to give to the jury the following requested instruction: "You are instructed that where one near relative renders services of a personal character to another near relative, where they live in the same household, the law presumes that the services were rendered gratuitously." It also excepted to the giving of the following instruction: "If you should find there was no express agreement to pay for the services, the law presumes an agreement to pay the reasonable value of the services." These two assignments will be considered together.

It was held in Wilkes v. Cornelius, 21 Or. 348, 28 P. 135, that when valuable services are rendered by a child to his parent there is a presumption, because of the existing relationship, that the services are rendered gratuitously, and that such presumption can be overcome only by an express agreement or understanding between the parties. In commenting on the ruling in that case this court in Sigman v. Herdman, ...

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