Ivey v. Lane, (No. 6431.)<SMALL><SUP>*</SUP></SMALL>

• Decision Date: 20 October 1920
• Docket Number: (No. 6431.)&lt;SMALL&gt;&lt;SUP&gt;*&lt;/SUP&gt;&lt;/SMALL&gt
• Citation: 225 S.W. 61
• Parties: IVEY v. LANE.
• Court: Texas Court of Appeals

225 S.W. 61

IVEY v. LANE.

(No. 6431.)^*

Court of Civil Appeals of Texas. San Antonio.

October 20, 1920.

Rehearing Denied November 10, 1920.

Appeal from District Court, Bexar County; S. G. Tayloe, Judge.

Suit by Will Ivey against W. C. Lane, executor. From judgment for defendant, plaintiff appeals. Affirmed.

E. P. Lipscomb, of San Antonio, for appellant.

Guinn & McNeill, of San Antonio, for appellee.

FLY, C. J.

This is a suit instituted by appellant for specific performance of a contract made by and between appellant and Chere Secret, or Secrest, deceased, for the latter to devise to him sufficient of her property to pay him for personal services rendered by him to her in her declining years, or in the alternative for a judgment for the reasonable value of such services. The cause was submitted to a jury on special issues, and on the answers thereto the court rendered judgment in favor of appellant for $817. It is recited in the judgment the sum of $817 was obtained by adding $600, a legacy for appellant named in the will of Chere Secret, to $400, the sum found by the jury for the services of appellant's wife and deducting therefrom $183, amounts found to have been received by appellant. Appellee pleaded two years' limitation to appellant's claim.

In answer to the questions submitted to the jury, they found that appellant, at the instance and request of Chere Secret, performed personal services for her between December 1, 1914, and February 1, 1918; that the value of such services was $3,400; that no services were rendered by him after September 21, 1917; that he was not paid for such services by deceased; that his wife at the request of Chere Secret performed services for her after February 1, 1919; and that such services were of the value of $400; and that she was not paid for the same. It was also found that appellant and his wife had received from the estate, through rents collected, use of building, and appropriation of personal property, the sum of $183. Although, as stated by the trial judge, it is not contemplated by the statutes that conclusions of fact and law should be filed by the judge when the trial is by jury, still, on the request of counsel for appellant that the court indicate the grounds upon which the judgment for only $817 was rendered, the court filed such conclusions. He found that appellee was the duly qualified independent executor of the estate of Chere Secret, who died in Bexar county on September 21, 1919, leaving an estate valued at $3,000 or $4,000; that she left a will which was duly probated in which she bequeathed to appellant the sum of $600, which had not been paid; that the suit was filed on November 14, 1919; that no express contract was proved and there was no agreement that the services were not to be paid for until after the death of deceased. The court found that the $3,400 found by the jury as the value of the services of appellant were for services rendered more than two years before the death of Chere Secret, and was consequently barred by limitations. We approve the findings of fact of court and jury.

There was no testimony tending to show an express contract to pay for the services either in money at the time they were performed or by a bequest in the will of deceased. Such contracts are viewed with great caution and can only be established by full and satisfactory proof, and no presumptions or inferences will be indulged in favor of them. The evidence showed that appellant and his wife were living with his aunt, Chere Secret, and that he performed services for her for several years; but there is not one word of testimony to the effect that she ever promised to pay him anything for his services at any time. The only testimony as to her bequeathing him all her property was remarks attributed to her by Louis Mondola. Hattie Kuykendall swore that deceased told her that appellant "was the only relative she had and at her death he would become heir to what she...