In re Stoll's Estate

• Citation: 188 Or. 682,217 P.2d 595
• Parties: In re STOLL'S ESTATE. SMITH v. LITTLE.
• Decision Date: 25 April 1950
• Court: Supreme Court of Oregon

217 P.2d 595

188 Or. 682

In re STOLL'S ESTATE.

SMITH v. LITTLE.

Supreme Court of Oregon.

April 25, 1950

Argued March 22, 1950.

Carl M. Little, of Portland, argued the cause and filed a brief in pro. per.

Neal R Crounse, of Portland, argued the cause and filed a brief for respondent.

Before LUSK, C. J and BRAND, BAILEY, HAY and LATOURETTE, JJ.

HAY Justice.

T. A. Stoll died testate September 18, 1947. His will was admitted to probate in Multnomah County on October 6, 1947, and Mr. Carl M Little was appointed executor thereof. On April 29, 1948, Mrs. Edna Smith filed with the executor a claim against decedent's estate in the sum of $2,250, for special nursing services, and care of decedent's business affairs, for the period from March 15, 1945, to September 18, 1947. The executor rejected the claim. Thereafter, a summary hearing was had thereon by the Circuit Court for Multnomah County, Department of Probate, section 19-704, O.C.L.A., and the claim was allowed in full by judgment dated February 7, 1949. The executor moved for a new trial, which was denied, and he appealed from the judgment. He assigns error as follows: (1) Lack of competent satisfactory evidence to support a contract, express or implied, to pay for claimant's services, or to sustain an action in quantum meruit therefor; (2) lack of competent satisfactory evidence other than the testimony of the plaintiff to support the judgment; (3) denial of the motion for a new trial.

The claimant testified as follows: She was not related to Mr. Stoll. He rented a room at her place from January 1, 1943, until sometime in March, 1945, for which he paid her $15 a month. Thereafter, he roomed and boarded with her, paying $50 a month for about a year, then $60 a month, and, for the last few months of his life, $65 a month. He died September 18, 1947. He had been in business as a grocer, but retired, owing to ill health, in 1943. From March 15, 1945, until his death, he was often ill, and claimant took care of him, spending many nights looking after him. He was confined to his bed 'lots of the time'. She conveyed him to the hospital in her own car on different occasions. She is not a nurse, but she did everything for Mr. Stoll that the doctor told her to do. He was at times very sick, and she gave him everything she could to settle his stomach. He vomited 'all over the place'. She gave him enemas. At his request, she received payment of bills due him in connection with his former grocery business, payments from persons to whom he had loaned money, and monthly rentals of two houses which he owned. She visited him daily when he was in the hospital (on one occasion he was hospitalized for six weeks, on others, for a few days at a time, and sometimes only over night), taking his mail to him there, and receiving his written instructions regarding business matters. She took care of his hospital bills. She reported to him all collections which she made for him, and either paid him the moneys or deposited them in his bank account. He paid her nothing for these services. He told her, on many occasions: 'If anything unforeseen happens, you have been well provided for.' He said that she was to be paid; that there was money for her. He never said how he was going to pay her, or how much. He purchased a house on Stark Street, and told her that he was going to give it to her. He also told her that there would be money left in the house for her. He hid some money in the basement of her home. Her brother found it there and gave it to her. She gave it to Mr. Stoll, who told her: 'If anything unforeseen happens, that will take care of you; nobody knows it is there but you and me, and whoever goes first the other will get it.' This was in 1943, however, prior to the time when her alleged special services commenced. He replaced the money in the basement cache, but afterwards removed it. None of his relatives were present to look after him, and he had no one to take care of him but Mrs. Smith. She received her pay for his room and board regularly every month. She gave as her reason for failing to require monthly payment for her special services the facts that Mr. Stoll said he would leave her well provided for, and that meantime he needed his money. She was not then aware that he had any money other than 'what was coming in'. She never told him that she was charging him $75 a month for these extra services. 'He was there, and I was taking care of him, and I done the best I could for him, thinking that he would leave me something.' She arrived at the figure of $75 a month as a proper charge when she found that Mr. Stoll had not left her anything and had left 'everybody else' something. She thought she 'had it coming'. In response to a question as to whether she considered $75 a month a reasonable amount for her services, she said: 'Well, it isn't very much. I had to turn down work that I could be paid for, to take care of him.'

Mrs. Ione E. Sax testified: She was acquainted with the decedent. She lived next door to the claimant, Mrs. Smith. During the period covered by Mrs. Smith's claim, Mrs. Sax visited in claimant's home at least once a day, and sometimes twice. When Mr. Stoll was ill, Mrs. Smith sometimes called upon Mrs. Sax to come over and help her with him, and she did so. Mrs. Smith gave Mr. Stoll whatever nursing care or help was necessary. 'At times he just passed completely out and she would try to revive him.' Mr. Stoll told Mrs. Sax that he would see that Mrs. Smith was well paid for any trouble that he had caused her. He never told her 'in so many words' that Mrs. Smith wasn't being paid enough for what she was doing for him, but he said: 'I'll see that she is well paid for it--for the care that she is giving me.' Mrs. Smith 'did sewing' and, at different times, she was unable to carry on such work on account of having to take care of Mr. Stoll. When Mr. Stoll first went there to live he was never very well, and during the last two years he was very ill most of the time. He was bedfast very often. Mrs. Sax would go in and Mr. Stoll wouldn't be up for breakfast, and Mrs. Smith would say that he was sick, and she was taking his breakfast up to him. That happened very often. She did not mean to say, however, that he was a shut-in or an invalid. She was present at times when people came with the rentals of the houses, and she knew that Mrs. Smith had taken 'different things' to the bank and to the hospital for Mr. Stoll. 'Q. [by the Court] What you saw her do was collecting the bills and collecting the rents? Just winding up his business? A. After he had closed his store, he had a lot of money out and people came to the house paying on them.'

Carl Trekell testified: He was formerly employed by Mr. Stoll in his grocery store and butcher shop. He visited him at Mrs. Smith's home. He had worked for Mr. Stoll for a couple of years, and maintained very friendly relations with him at that time and afterwards. He knew that Mr. Stoll was ill; 'very much so'. It was a 'heart condition'. Mr. Stoll ran a credit business, and had 'accounts out' after he retired. Mr. Trekell knew that Mrs. Smith took care of Mr. Stoll's business accounts. After Mr. Stoll retired, she made the collections for him. He did not know whether or not she did the book work and kept the accounts, but when he asked Mr. Stoll if there was anything that he (Mr. Trekell) could do for him, he said: 'No, everything is well taken care of; Mrs. Smith takes care of things.' He took Mr. Stoll over to his (Trekell's) house for an hour or two many a time, just for a little relaxation. Mr. Stoll was quite often laid up in bed, and Mr. Trekell knew that Mrs. Smith took care of him during those periods. Mr. Stoll told Mr. Trekell how much he appreciated his home. 'He has mentioned on several occasions that she would be well paid for the care that he was getting there at her home.' Mr. Trekell did not really observe what Mrs. Smith did for Mr. Stoll, as he was in the home very little. He did know of his own knowledge that she went to the hospital to see him, took care of his affairs, and took his mail and other matters 'to be opened up'. Answering a question on cross-examination as to how much of the time Mr. Stoll was 'up and around', he said: 'Well, sometimes, most of the time, when he could, he would walk over to the park; but numerous times he has passed out on the way over there and had to be taken to the hospital. He had a very bad heart, as you know.'

Mrs. Lela Van Sicklin testified: She has been a practical nurse for 25 years and is acquainted with Mrs. Smith. She visited Mrs. Smith's home many times while Mr. Stoll was living there, and observed that Mrs. Smith was caring for him. On one occasion when Mrs. Van Sicklin was present, Mr. Stoll was ill and Mrs. Smith took two meals up to him. Many times when Mrs. Van Sicklin was there, Mr. Stoll was not able to go to the park, and Mrs. Smith took him there in her car and went back for him afterwards and brought him home. She took care of his personal needs, like a regular nurse would do. Mrs. Van Sicklin was at Mrs. Smith's home maybe once or twice a week; 'then there would be times when I wouldn't be there in maybe a month.' Mrs. Smith was taking care of Mr. Stoll during the period covered by her claim. In Mrs. Van Sicklin's opinion, the reasonable value of services as a practical nurse during that period was $5 a day plus meals and room.

The inventory and appraisement on file shows decedent's estate to be of the value of $29,034.13. His heirs at law appear to have been three brothers, one sister, three nieces, and two nephews. His will contained two specific bequests of $300 each and one of $400, none of which was to any of his heirs at law. The residue of his...