Miller v. Steele

• Decision Date: 15 May 1907
• Docket Number: 1,644.
• Parties: MILLER v. STEELE.
• Court: U.S. Court of Appeals — Sixth Circuit

153 F. 714

MILLER v. STEELE.

No. 1,644.

United States Court of Appeals, Sixth Circuit.

May 15, 1907

Jacob Shroder, for plaintiff in error.

Frank W. Cottle, for defendant in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS Circuit Judge.

This is an action at law prosecuted by the defendant in error, Mary L. Steele, to recover from the plaintiff in error a sum which she claims to be due her under a contract for services rendered to John M. Wilson, who died December 29, 1901 leaving a will whereby he bequeathed all his estate to Eliza B. Miller, the defendant below. Miss Steele and said Wilson were residents of the city of New York at the time when the contract is alleged to have been made and while the services were being rendered; the former being a teacher in the public schools, and the latter an inspector at the customs office in that city. He died at Cincinnati, while on a visit to Mrs Miller, who was his sister. His will was probated in New York. The husband of Mrs. Miller was appointed sole executor administered the estate, and turned over to Mrs. Miller the whole sum remaining thereof after paying debts and expenses the sum received by her being about $70,000. The executor's accounts were settled in the Surrogate's Court, and he was discharged May 19, 1903. Mrs. Miller was and is a citizen of Ohio, resident at Cincinnati. This suit was brought in the Circuit Court of the United States for the Southern District of Ohio, July 5, 1905. It is founded upon certain provisions of the New York Code of Civil Procedure, giving a remedy to creditors of deceased persons who have not proved their claims during the course of ordinary administration, whereby they may obtain satisfaction of their debts from legatees and other beneficiaries who have received assets of the estate.

In her petition the plaintiff (below) stated that she rendered the work, labor, and services for which she sues as nurse for said Wilson, who was an invalid, and 'that at the time of and during the performance of the work, labor and services, above referred to, said John M. Wilson, now deceased, promised and agreed to pay this plaintiff therefor the sum of $25,000, in cash, or in securities of the value of $25,000, and, in the event of his decease prior to such payment, he promised and agreed to make a testamentary bequest to plaintiff of such sum to be paid to her out of his estate, or to set aside securities of the value of $25,000, as plaintiff's property to be delivered to her upon his decease. That said plaintiff, in reliance upon said promise and agreement, fully performed such work, labor, and services on her part, but John M. Wilson, now deceased, failed to make any testamentary bequest to plaintiff of such sum or any part thereof, nor did he set aside securities of the value of $25,000 or any securities as plaintiff's property to be delivered to plaintiff upon his decease, nor has plaintiff received any payment or recompense for such services from John M. Wilson, now deceased, or from his estate, except that plaintiff has received the sum of $4,000 on account thereof. ' She then proceeds to state the making of the will, the death of the testator, the probate of the will, the administration, that the publication of notices to prove claims was unknown to her, and that the defendant as sole legatee had received the assets, which consisted of personal property amounting to $100,000. She thereupon prayed 'judgment against the defendant for the sum of $21,000 and interest from the 29th day of December, 1901. ' The sections of the New York Code relied upon were sections 1837, 1838, and 1841. These, with sections 1839 and 1840, which are exhibited by the answer of the defendant read as follows:

'Sec. 1837. An action may be maintained as prescribed in this article against the surviving husband or wife of a decedent and the next of kin of an intestate or the next of kin or legatees of a testator to recover, to the extent of assets paid or distributed to them, for a debt of the decedent upon which an action might have been maintained against the executor or administrator. The neglect of the creditor to present his claim to the executor or administrator within the time prescribed by law for that purpose, does not impair his right to maintain such an action.

'Sec. 1838. An action, specified in the last section, must be brought, either jointly against the surviving husband or wife and all the legatees, or all the next of kin, as the case may be, or at the plaintiff's election against one of them only. But where a legacy is received by two or more persons jointly, they are deemed one legatee within the meaning of each provision of this article, relating to legatees.

'Sec. 1839. Where a joint action is brought as prescribed in the last section, the whole sum which the plaintiff is entitled to recover, must be apportioned among the defendants, in proportion to the legacy or distributive share, as the case may be, received by each of them; and the final judgment must award against each defendant separately the proportionate sum thus ascertained. The costs of the action, if the plaintiff is entitled to costs, must be apportioned in like manner; except that the expense of serving of summons upon each defendant must be taxed against him only, and one sheriff's fee for returning an execution may be taxed against each defendant against whom any sum is awarded.

'Sec. 1840. Where an action is brought against the surviving husband or wife only, or against one only of the next of kin or legatees, the sum which the plaintiff is entitled to recover, cannot exceed the sum which he would have been entitled to recover from the same defendant, in action brought as prescribed in the last section.

'Sec. 1841. If the action is brought against a legatee, or against all the legatees, the plaintiff must show, either, (1) that no assets were delivered by the executor or administrator of the decedent, to the surviving husband or wife, or next of kin; or (2) that the value of assets, so delivered has been recovered by some other creditor; or (3) that those assets, after payment of the expenses of administration and preferred demands, are not sufficient to satisfy the demand of the plaintiff; in which case, he can recover only for deficiency.'

For the defendant a demurrer to the petition was filed on the ground, as therein assigned, 'that this court is without jurisdiction at law of the cause set forth in the petition. ' The demurrer was overruled. The defendant thereupon answered the petition 'without waiving her objection to the jurisdiction at law,' admitting the death of Wilson, the making and probate of his will, the administration by the executor, her receipt of the assets as sole legatee, that the testator left no wife or children, and that, although he left next of kin, none of the assets came to them except those delivered to her. For her second defense she set out sections 1837, 1838, 1839, and 1840 of the New York Code, above mentioned, and concluded that 'by reason thereof this court cannot take cognizance of this case on its law side. ' The making of the alleged contract between the plaintiff and Wilson was denied by the general denial of matters not admitted. Upon the trial evidence was adduced tending to show the making of the contract alleged in the petition and the rendition of the services as therein alleged. From the evidence it further appeared that, at the time when the services were rendered, the parties to the contract were engaged to be married at some future time, the date not being fixed, but depending on subsequent conditions, and that they lived in the same tenement, but on different floors, or in different rooms on the same floor, but not as husband and wife. There was evidence that he paid the rent for both, some of the time at least; but this was denied by the plaintiff. The plaintiff was permitted to testify in her own behalf, against the objection of the defendant, that she was incompetent, and an exception was duly taken. At the conclusion of the evidence several requests for instruction to the jury were presented by counsel for defendant, but only one of them need now be stated. This was as follows:

'If the relation between the plaintiff and John Wilson were as parties affianced or betrothed to each other, and if during the period of this relationship they were living in one household and as members of one family, and if during such relationship and mode of living the services claimed by plaintiff to have been rendered for Wilson were in fact rendered for him, in such case it is incumbent on plaintiff to establish her claim by clear and unequivocal proof of the existence of an express contract. In such case no claim can be allowed to rest on an implied contract. The contract must be an express one, which must be proven by clear and unequivocal proof; it is not sufficient to prove the existence of a contract or its terms by only a preponderance of the evidence. The court refused to give said special instruction, to which ruling of the court counsel for the defendant at the time excepted.' The court in its instructions to the jury, after observing that the engagement between the parties was not set up in the pleadings, but had 'been brought into the case as one of the circumstances tending to throw light upon the contract which is set up and relied upon,' said:

'Under this contract she was not the betrothed of Wilson; she was simply a servant. Now, the promise set up in the contract, if made with reference to making provision for her as his future wife, then such promise would not support the contract set up here; but if the promise was, as she claims it to be, a promise to pay her $25,000 for work and labor

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