Nelson v. Masterton
| Decision Date | 16 October 1891 |
| Docket Number | 176 |
| Citation | 28 N.E. 731,2 Ind.App. 524 |
| Parties | NELSON, ADMINISTRATOR, v. MASTERTON |
| Court | Indiana Appellate Court |
From the Spencer Circuit Court.
Cause reversed, with instructions to grant a new trial at the costs of the appellee.
C. L Wedding, E. M. Swain and C. B. Laird, for appellant.
H. M Logsdon, W. C. Mason and H. Kramer, for appellee.
The appellee filed a complaint, in the nature of a claim, against the estate of Charles G. Nelson, deceased, for work, labor and services performed during the lifetime of the decedent.
The answer was general denial and set-off. There was a trial by a jury, resulting in a verdict for the appellee. A proper allowance, or judgment, was rendered thereon against the estate of said decedent over a motion for a new trial.
The only error assigned is the alleged error of the circuit court in overruling the motion for a new trial. This motion assigned as causes for a new trial that the verdict was not sustained by sufficient evidence; that the verdict was contrary to law; that the damages were excessive; that the court erred in admitting and excluding certain evidence, and in refusing to strike out certain evidence and in permitting the claimant to testify to certain facts that she was not competent to testify to under the law; error of the court in modifying interrogatories requested by appellant to be propounded to the jury; error of the court in giving certain instructions and in making remarks to the jury concerning the testimony of certain witnesses in said cause.
The evidence clearly shows that the appellee based her claim against the decedent's estate upon the following facts: The appellee was a niece of the decedent, Charles T. Nelson, and when she was sixteen years of age the decedent took her home to live with him, under promise to her and her parents, that if appellee would go to his house and live with him she should take the place of his deceased daughter in his house and in his affections; that he would educate, clothe and support her as his own daughter, and would make her an heir to his estate equal to his two sons. Under this promise appellee went and lived in the home of the decedent, remaining there until he died. During the time appellee lived with decedent he frequently expressed an intention of providing for her by will or otherwise, so that she should be an equal heir in his estate with his two sons. The appellee so remained and continued to live with the decedent for a period of about six years, and did and performed her duties in such faithful manner as to meet and fulfil the expectations and desires of the decedent, but he died without making any provision for her by will or otherwise, or providing any means for her compensation.
There is no doubt, under the evidence, that it was in consideration of the promises of the decedent that appellee went to live with and made her home with the decedent.
The contract thus proven is void, and comes within the statute of frauds. It can not be enforced, but the facts thus proven rebut the presumption, which otherwise might have obtained, that the services rendered were to have been gratuitously performed, and that they were performed under the expectancy that appellee would be compensated by the decedent making good the promises under which she entered into the employment. Wallace v. Long, 105 Ind. 522, 5 N.E. 666.
Under these facts it can not be said that the services rendered by the appellee were to be gratuitously performed, but, on the contrary, the presumption which otherwise might have obtained is rebutted, and appellee was entitled to recover the value of her services, and in estimating the value of the services regard should be paid to the situation of the parties and the nature of the services required or performed. In such case the value of the services performed, and not the value of the property agreed to be conveyed, is the measure of damages.
The evidence tends to sustain the verdict, and the damages do not appear to have been excessive.
The fifth cause assigned for a new trial calls in question the ruling of the court upon the admission of certain evidence on the trial of the cause over the objection and exception of the appellant.
D. M. Hammond, a witness on behalf of the appellee, was permitted to answer the following question:
"State what, if anything, Belle did in reference to controlling or having charge of the house."
The witness answered:
"I think I am safe in saying she had; I know she had."
There was no error in the admission of this evidence.
Under the sixth, seventh, eighth, ninth, and tenth causes it is contended that the court erred in permitting certain witnesses, who did not live in the immediate vicinity of Grandview, the residence of the decedent previous to his death, and the place at which appellee rendered the service for which this claim was filed, to testify as to the value of the services rendered upon a state of facts assuming the nature, kind, and character of service done and performed by the appellee for the decedent. The testimony of these several witnesses was in answer to questions assuming, substantially, the same state of facts. Before permitting said witnesses to answer the questions propounded the court stated to such witnesses that it would not be proper to confine their testimony to the value of services to Rockport, or vicinity, or other points where said witnesses resided, if there was any difference in the prices there and at Grandview; but that the question embraced the value of such service in the vicinity of Grandview which might include the other points at which said witnesses resided, if there was no difference in the value of such service, which was for the...
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