Kling v. Bordner

• Decision Date: 25 June 1901
• Citation: 61 N.E. 148,65 Ohio St. 86
• Parties: KLING v. BORDNER.
• Court: Ohio Supreme Court

61 N.E. 148

65 Ohio St. 86

KLING v. BORDNER.

Supreme Court of Ohio.

June 25, 1901

Error to circuit court, Summit county.

Action by Anna E. Bordner against Adam E. Kling, administrator, on an alleged contract of deceased to leave her estate by will to plaintiff. Judgment for plaintiff was affirmed in the circuit court, and defendant brings error. Reversed.

The petition is as follows:

‘ The plaintiff alleges the following facts, which constitute her cause of action in this behalf: On or about the 5th day of June, 1896, the plaintiff was living at Harrisburg, in the state of Pennsylvania. On said last-named day she received a letter from Susannah Maconaky, then alive, and residing at Akron, Ohio, in which letter the said Susannah requested this plaintiff to leave her home at said Harrisburg, and come to Akron aforesaid, for the purpose of caring for and nursing the said Susannah, who was at the time ill, which this plaintiff accordingly did. Thereupon and thereafter, to wit, on the 11th day of June, 1896, the said Susannah Maconaky and this plaintiff entered into a verbal contract, whereby the plaintiff agreed to abide with, nurse, attend, and care for the said Susannah, in sickness or in health, for as long a time as she, the said Susannah, might live; in consideration of which promise of the plaintiff the said Susannah Maconaky on her part agreed to give to this plaintiff all of her estate and property except so much thereof as might be necessary to pay the debts and funeral expenses of the said Susannah. The plaintiff duly kept, observed, and performed all and singular the conditions and stipulations of said agreement on her part to be carried out. She left her own family and home, and stayed with, nursed, cared for, and attended faithfully and diligently the said Susannah all the time from said last-named date until her death, which took place on the ___ day of July, 1896. Thereupon the defendant was duly appointed and qualified as the administrator of the estate of said Susannah Maconaky, deceased, and is still acting as such. The said Susannah Maconaky did not perform or keep her part of said agreement, although the plaintiff had fully executed her part of it, and did not give to this plaintiff, by last will or otherwise, any part of the estate or property whereof she was the owner at the time said agreement was entered into; but died intestate. The defendant, as the administrator aforesaid, has converted all the assets of said estate into money, and the entire amount therefrom is the sum of $1,740.32. Out of said money so in his hands the defendant is obliged to pay the debts and funeral expenses of his said intestate, which amount to the sum of $605.35, and no more. The costs of administering the said estate, including the commissions and compensation of the defendant as such administrator, is the sum of $191 and no more; and the reasonable expense of a tombstone for said decedent is $55,-leaving of the assets of said estate after deducting the said sums expended in payment of said debts, funeral expenses, costs and compensation, the sum of $848.65, which would have accrued and belonged to this plaintiff if the defendant's intestate kept and observed her said contract. By reason of the premises and the violation of said contract by said decedent, after the same had been fully executed on the part of this plaintiff she (that is to say, the plaintiff) has been damaged in the sum of $848.65. On the 27th day of April, 1897, the plaintiff duly presented her claim against said estate, as above set forth, duly verified as required by law, to the defendant, as the administrator aforesaid, for allowance; but the defendant thereupon refused to allow the same as a valid claim against said estate, but disputed and rejected all and every part thereof. Wherefore the plaintiff prays judgment against the defendant, as the administrator aforesaid, for the said sum of $848.65, and for such other relief as she may be entitled to.’

The answer avers that the estate left by the decedent, with the exception of a few household goods of small value, consisted entirely of real estate; and that the proceeds of said real estate, which was sold by the defendant under the order of the court in the course of administration, after the payment of the debts and costs of administration, are the only assets of the estate in his hands for administration and distribution. The answer denies the contract set up in the petition, and alleges that, if such contract was made, it is within the statute of frauds, on which he relies in defense to the action. The answer further avers the fact to be that plaintiff, recognizing that there was no such contract, presented to said administrator an account for her services to decedent, Maconaky, during the whole of her last illness, and for services before said last illness, and for services after the death of said Maconaky; and that on November 30, 1896, defendant allowed plaintiff in full on said account for all she claimed for services during said last sickness of decedent, and which allowance on said account plaintiff accepted by her silence and by her neglect to sue on same within the time allowed by law; and this defendant has at no time recalled or rejected said account as so allowed, but the said allowance still stands.

The trial of the cause to a jury, at the January term, 1898, upon the issues joined by the foregoing pleadings, resulted in a verdict for the plaintiff for the amount claimed in the petition, and after the overruling of a motion for a new trial, made by the defendant, judgment was rendered on the verdict. Thereafter, but still at the same term, the court, on motion of the plaintiff, granted leave to amend the petition, as stated in the record, ‘ to conform to the facts proved on the trial.’ This leave was granted against the defendant's objection, and he duly entered his exceptions. Thereupon the plaintiff filed her amended petition, containing as her first cause of action a copy of her original petition, and adding the following as a second cause of action: ‘ For her second cause of action this plaintiff here adopts and repeats all of the allegations of her first cause of action herein in regard to her leaving Harrisburg; her receipt of a letter from Susannah Maconaky, then alive and residing at Akron, Ohio, and the purport of the said letter in regard to the death of the said Susannah Maconaky; the appointment and qualification of the defendant as her administrator; and in regard to the defendant's conversion of the assets of said estate into money, and the amount thereof; and in regard to the amount of the debts and funeral expenses of said decedent, and costs of administering her estate, and the reasonable expense of a tombstone at her grave; and in regard to the amount of the assets of said estate after deducting all of said sums expended and to be expended in the payment of said debts, funeral expenses, costs, compensation, and tombstone; and thereupon she further says that on the said 7th day of June, A. D. 1896, the said Susannah Maconaky, being then alive, caused and directed to be written a letter, mentioned in said first cause of action, of the purport and effect in said first cause of action named, a true copy whereof is hereto attached, marked ‘ Exhibit A,’ whereupon this plaintiff accordingly did, immediately after the receipt of said letter, accept the proposition therein contained, and did come to the said city of Akron aforesaid, and there duly kept, observed, and performed all and singular the conditions and stipulations by the said letter required of her to be kept and performed, left her own family at home, and stayed with and nursed, cared for, and attended faithfully and diligently the said Susannah all the time from the date of her said arrival in Akron until the death of said Susannah, which took place as alleged in said first cause of action; and which letter and acceptance and performance of the same by this plaintiff constituted a written contract between her and the said decedent, by which the said Susannah Maconaky on her part agreed to give to this plaintiff all of her estate and property, all of the assets of her estate, which might be left at her decease, except so much as might be necessary to pay the debts and funeral expenses of the said Susannah. The said Susannah Maconaky did not perform or keep her part of said agreement in any wise, although the plaintiff had fully executed her part thereof, and did not give to this plaintiff, by last will or otherwise, any part of the assets or estate whereof she was the owner at the time the said agreement was entered into; but died intestate. And the plaintiff says that on the 27th day of April, A. D. 1897, she duly presented her claim against the estate of said decedent, as alleged in said first cause of action, for allowance, to the defendant, who thereupon refused to allow the same as a valid claim against said estate, but rejected every part thereof. By reason of the premises, and the violation of said contract by said decedent after the same had been duly executed on the part of this plaintiff, she, the plaintiff, has been damaged in the sum of $848.65, which she claims, and for which she prays judgment against said defendant.'

The exhibit referred to in this second cause of action is as follows: ‘ Exhibit A. Akron, O., June 7, 1896. Dear Mother: Aunt Susan is very low, and, if you can possibly come, do so at once. She wants you to take care of her. She was to be all alone part of the time. She says she will make it all right with you if you come. If you haven't money to pay your fare, she will send it to you. If you come and stay with her, after her death all that is left after her debts and funeral expenses are...