Kinser v. Bennett

• Decision Date: 08 November 1947
• Docket Number: 36887.
• Citation: 163 Kan. 725,186 P.2d 284
• Parties: KINSER v. BENNETT et al.
• Court: Kansas Supreme Court

186 P.2d 284

163 Kan. 725

KINSER v. BENNETT et al.

No. 36887.

Supreme Court of Kansas

November 8, 1947

Appeal from District Court, Kiowa County; Karl Miller, Judge.

Action by Edna Kinser against J. G. Bennett, as special administrator of the estate of Rees Carr, deceased, and others, for allowance of plaintiff's claim against the estate for personal services rendered to deceased and his sister. From a judgment denying the claim, plaintiff appeals.

Syllabus by the Court.

In an action to establish a demand for personal services in the nature of care against the estate of a deceased person based upon an alleged express contract the record is examined, and it is held, assuming the agreement relied on was express in character, there was substantial competent evidence to sustain the trial court's finding that the claimant had been compensated for services rendered pursuant to its terms by conveyances of real estate made by the decedent in his lifetime and by his will whereby she was bequeathed a legacy of $1000 for her care and kindness to him and to his predeceased sister.

George Barrett, of Pratt (V. M. McElroy, of Greensburg, on the brief), for appellant.

Steve W. Church, of Greensburg, for appellees.

PARKER Justice.

This appeal arises from a judgment of the district court of Kiowa County, in an action properly transferred from the probate court of such county, denying the allowance of a claim against the estate of a deceased person.

Rees Carr, an aged bachelor, and his maiden sister Martha Carr, who was much older, resided together in the city of Haviland Kansas, in April 1942. Both were, and until the dates of their deaths remained, physically incapacitated and unable to properly care for themselves. Miss Carr died on January 17 1946. Mr. Carr died on April 25, 1946. Some months prior to their deaths, although Miss Carr owned no property at the time or thereafter, the brother and sister joined in the execution of a last will and testament. That instrument, on appellant's own petition, was admitted to probate on the 29th day of May, 1946, as the last will of Rees Carr.

On August 31, 1946, the appellant, who was a niece of the testator, filed a claim against his estate. We are interested only in matters asserted by her as grounds for its allowance. With respect to them such demand reads:

'For personal services rendered as housekeeper and practical nurse, to Rees Carr and Martha E. Carr, deceased, at the special instance and request of the decedent Rees Carr, from the 3rd day of August, 1944, to the date of decedent's death on April 25, 1946, for which services the decedent Rees Carr agreed to pay a reasonable compensation; that a reasonable charge for the services rendered is the sum of $30 per week, or a total of $2,700.

'That on or about the 3rd day of April, 1942, the said Rees Carr asked the petitioner to come into the home of the said Rees Carr and Martha E. Carr and keep house for them, and give them such attention and care as they should require so long as they should live, and agreed with the petitioner that she should be reasonably compensated for the services rendered.

'That the petitioner agreed to perform the services requested and at that time went to the home of the said Rees Carr and Martha E. Carr; that she lived in their home and performed the services agreed upon; * * *'

Thereafter, the appellee, as special administrator of the estate of Rees Carr and, the appellees, The Friends Africa Gospel Mission of Kansas Yearly Meeting of the Society of Friends and The Friends Bible College of Haviland, Kansas, who are beneficiaries under the will of such testator, filed identical answers in which they stated they had no personal knowledge of the appellant's claim which permitted them to either deny or admit its validity and requested the claimant be put on strict proof thereof.

With issues joined as heretofore stated, the cause was submitted to the trial court upon the evidence adduced by the parties. In due time that tribunal rendered its judgment denying the claim, which judgment according to the journal entry, was based upon the following findings:

'1. That the claimant, Edna Kinser, did not prove an express contract between herself and Rees Carr.

'2. That the claimant, Edna Kinser, has been compensated for her services so rendered by reason of the bequest contained in the will of Rees Carr, deceased, in the sum of one thousand dollars ($1000.00) to the said claimant, Edna Kinser, and by reason of the conveyance of real property made by the said Rees Carr to the said Edna Kinser in his lifetime.

'3. That by reason thereof claim should be and the same is hereby denied.'

Appellant appeals from the judgment charging that the court erred in its findings 1 and 2 and in overruling her motion for a new trial.

The grounds relied upon by appellant as error require an examination of the facts disclosed by the evidence on which the trial court's judgment was based. Such facts are not in controversy and for that reason will be stated in narrative form rather than in detail.

At the outset it can be stated the appellees concede that on all dates in question both Rees and Martha Carr were in a pitiable condition, that appellant cared for them in a laudable manner and that the claim made by her for services was reasonable. Therefore, our summarization of the facts will be limited strictly to the evidence pertaining to the contract upon which the appellant predicates her claim and such other matters as have to do with whether it was a proper and legal claim against her uncle's estate. With respect to such matters the record discloses In April, 1942, Martha Culver, a niece, who had been caring for the Carrs' decided that she could no longer perform that obligation. She had a conversation with Rees Carr wherein she suggested the possibility of getting her sister Mrs. Kinser, the appellant, to come to their home and look after them. As a result of that conversation Mr. Carr instructed Mrs. Culver to write appellant and inquire if she would come and care for him, and Aunt Martha, and advise her that if she would do so he would see that she was well paid...