Norton's Estate v. McAlister

• Decision Date: 13 May 1912
• Citation: 22 Colo.App. 293,123 P. 963
• Parties: NORTON'S ESTATE v. McALISTER.
• Court: Colorado Court of Appeals

123 P. 963

22 Colo.App. 293

NORTON'S ESTATE v. McALISTER.

Court of Appeals of Colorado

May 13, 1912

Appeal from District Court, City and County of Denver; Greeley W Whitford, Judge.

Claim by Rose A. McAlister against the estate of Samuel B. Norton. From an order of the County Court disallowing the claim plaintiff appealed to the District Court, where it was allowed, and the administratrix appeals. Affirmed.

George Dunne, B.C. Hilliard, and J.R. Allphin all of Denver, for appellant.

John Hipp and W.W. White, both of Denver, for appellee.

CUNNINGHAM J.

This appeal is prosecuted from a judgment of the district court in favor of appellee, plaintiff or claimant below, based upon a claim which she filed in the probate court against the estate of Samuel B. Norton for services rendered the said Norton during his lifetime.

The following are the facts which are either conceded or not disputed seriously: In 1897, Dr. Samuel B. Norton, then residing in this city, wrote several letters to appellee, who was then residing in Chicago, urging her to come to Denver and make her home with him, for the purpose of taking care of him in his declining years; he then having reached an advanced age and being at the time also in ill health. Appellee was a niece of Dr. Norton, and at that time unmarried; her maiden name being Rose A. Wheeler. After receiving three urgent letters from her uncle, appellee came on from Chicago to Denver. It appears that no definite arrangement had been made as to her compensation prior to her arrival here. Shortly after appellee's arrival, her uncle stated to her that, if she would take care of him in his declining years, he would in some way convey to her a house and lot in North Denver, which the doctor then owned. There is nothing in the record which shows specifically that Miss Wheeler accepted this offer, unless it be that, from the fact that she remained with him for five years, without any more definite understanding, it may be inferred that she assented thereto. Whatever the arrangement may have been, appellee remained from 1897 to 1902 at the home of Dr. Norton. There is no dispute that he was sorely in need of the kindly care and attention which, as nurse and housekeeper, his niece bestowed upon him. In 1902, five years after having taken up her residence at her uncle's home, Miss Wheeler was married to H.D. McAlister, and thereupon took up her residence with her husband on Race street, in the city of Denver, at no great distance from the home of her uncle. Dr. Norton appears to have freely consented to the marriage of his niece with McAlister, who had for a long time been a neighbor and friend of the doctor, and the most cordial relations appear to have continued to exist between Mr. and Mrs. McAlister and Dr. Norton down to the date of the doctor's death in 1907. During the five years succeeding the marriage of Miss Wheeler, it was a custom of the doctor to go frequently to her new home, or to be taken there by Mr. McAlister, and return to his own home after he had spent a portion of the day thus visiting with the McAlisters. In like manner, Mrs. McAlister visited her uncle at his home from one to three times a week for the purpose of keeping a general superintending care over him for his benefit and general comfort. She often took food specially prepared from her own home to him, and she was with him during his last illness and down to within a few hours of his death, which occurred in the night, a few hours after Mrs. McAlister had returned to her home for a period of rest. The record shows that Dr. Norton continued throughout the whole 10 years immediately succeeding the arrival of appellee from her home in Chicago, and down to the date of his death, to recognize and acknowledge his obligation to her, and he expressed to various persons, on divers occasions, his intention to recompense her therefor. He thus manifested his purpose frequently after Mrs. McAlister's marriage. He apparently had no great amount of ready cash or personal property. At any rate, it is shown that he stated that he had none, and always indicated his intention to compensate his niece by willing or transferring property to her so that she would come in possession of it after his death. Following Dr. Norton's death, no will, contract deed, or other instrument was found, whereby he had sought to discharge his obligation to his niece. Thereupon she filed her claim with the probate court for services rendered from 1897 to 1902; the last date being the date of her marriage. This claim was contested by the administratrix, the doctor's wife, and a formal trial was entered upon to a jury. At the close of Mrs. McAlister's testimony, offered in support of her claim, the record shows that the attorneys representing the estate moved for "judgment as of nonsuit, which is argued by counsel, at the conclusion of which, and being fully advised in the premises, it is considered by the court that the said motion be and is hereby granted, and that judgment of nonsuit be and it is hereby entered herein," so reads the record of the probate court on the hearing of the first claim. A similar claim, to which we shall presently advert, was filed later. Thereupon the claimant prayed and was allowed an appeal to the district court from the nonsuit entered at the request of counsel for the estate on the hearing of the first claim.

When the case was called for hearing in the district court, the attorneys representing the estate promptly moved "that this appeal be dismissed and this cause remanded to the county court," basing their motion upon the representation then made that the claim had been nonsuited in the county court, and claimant had not, "within 10 days thereafter, or at any other time or at all, applied to the said honorable county court to have set aside and vacated said judgment of nonsuit." This motion was granted by the district court, and the following order entered in connection therewith: "It is considered by the court that the appeal herein be, and the same is hereby, dismissed, and that the judgment of the county court stand in full force and effect, and that this cause be remanded to the said county court for such other and further proceedings as shall be necessary to the final execution of the judgment of said county court." This order of dismissal was entered in the district court on December 2, 1907. Appellee thereafter, and on January 20, 1908, filed a second statement of her claim against the estate in the county court, which second claim appears to have been based upon the same services as those included or covered by the first claim, disposed of as above stated, with the addition that she claimed $1,000 for services which she rendered Dr. Norton subsequent to her marriage. This claim came on for hearing in the county court, and was likewise disallowed in that court; but upon appeal to the district court the claim was allowed in the sum of $2,020, and it is from this allowance or judgment that this appeal is prosecuted.

Appellant's contentions are: (a) That the action of the county court in granting the motion for judgment as of nonsuit interposed by the estate at the conclusion of the...