Parker v. Hilliard
| Decision Date | 06 May 1940 |
| Docket Number | 14663. |
| Citation | 102 P.2d 734,106 Colo. 187 |
| Parties | PARKER v. HILLIARD. |
| Court | Colorado Supreme Court |
In Department.
Error to District Court, City and County of Denver; Henry A. Hicks Judge.
Proceeding by William H. Parker against B. C. Hilliard, Jr., as public administrator, administering the estate of Lee Knapp deceased, involving a claim against deceased's estate. To review a judgment of nonsuit entered by the district court plaintiff brings error.
Affirmed.
Milnor E. Gleaves, of Denver, for plaintiff in error.
Benjamin E. Sweet, and Oval A. Phipps, both of Denver, for defendant in error.
This action involves a claim against the estate of Lee Knapp deceased, which was duly presented during the administration proceedings in the county court, allowed in part, and an appeal taken from the ruling to the district court by the administrator. At the conclusion of the introduction of claimant's evidence, in a jury trial on the appeal, the court, on motion of the administrator, entered a judgment of nonsuit, to review which claimant regularly brings the matter here for our consideration.
Altered to conform to our appellation of the parties the amended statement of claim, so far as pertinent, alleges: 'That on or about the ___ day of November, 1937, claimant and the said Lee Knapp mutually entered into an oral arrangement and agreement wherein and whereby it was understood and agreed between them in words and to the effect that the said Lee Knapp promised and agreed to support and maintain claimant for the remainder of his natural life, and arrange and see to it that he wanted for nothing for his comfort and livingand to that end get all that he, the said Knapp, left when he died, in consideration for which promise claimant undertook and agreed from thenceforth to be a companion to the said Knapp for the remainder of his (Knapp's) natural life and assist him in his personal and property affairs; * * * that * * * claimant always has fully, faithfully and duly performed all the terms and conditions thereof on his part. * * *; that a fair and reasonable sum for the support, * * * and maintenance of claimant from and after the time of the decease of Lee Knapp during and through the period of the natural life and the life expectancy of claimant, and for his reasonable wants and pleasure for the remainder of his life, would be and is the sum and amount of Twenty-Five Thousand ($25,000.00) Dollars. * * * that Lee Knapp died intestate leaving no heirs-at-law.'
In the district court, previous to the introduction of evidence and again at the conclusion of his case, claimant sought permission to strike the words above italicized upon the ground that he could not produce evidence to support the allegation. The administrator objected upon the premise that as pleaded claimant's asserted right to the entire estate rested on an oral contract, void under the statute of frauds, and that the motion was an attempt to evade the operation of such statute; that in effect it sought to change the original claim by amendment after the expiration of the period within which a claim might be filed, and that the words sought to be stricken were an integral part of the alleged agreement and not severable from it. The court denied the motion and claimant assigns error to the ruling. In view of our disposition of the proceeding as hereinafter will appear, it is not necessary that we discuss or consider this point nor the applicability of the statute of frauds to this or other phases of the case.
From the evidence it appears that for some years prior to his decease, Knapp had employed the claimant at a wage not disclosed by the record, as caretaker for a dwelling and plot on West Forty-fourth avenue beyond Wheatridge, west of Denver, where, after the death of Knapp's wife, the two men lived. There is no doubt that Knapp and the claimant were close friends and that the latter rendered loyal and conscientious service to his employer Knapp during his lifetime. Soon after the death of Knapp claimant filed a claim against the estate for $50 for services rendered the decease, which was paid. Subsequent to the filing of the claim under consideration, claimant tendered back to the estate the sum so received by him, which the administrator refused to accept. The evidence upon which reliance is placed to establish the contract and claim consisted of oral admissions and statements alleged to have been made by Knapp to several third parties who testified as witnesses for claimant. One witness--said in claimant's brief to most strongly support his case--declared that in the fall of 1937, as well as upon other occasions subsequently, Knapp told witness: 'I have agreed with Mr. Parker that if he will stay with me, I will take care of him for the rest of his life and he will never want for anything.' A second witness testified to admissions by the deceased in substantially the same words. A third witness testified: 'Well, when he told me about his property on West Forty-fourth, he told me Mr. Parker was taking care of it, he was perfectly satisfied, and that he was paying him a nominal fee and he expected to see that Mr. Parker would be taken care of.' The next witness said Knapp stated: 'He [Knapp] never told me what he was giving him [Parker], or anything, and I didn't ask him, but he says, 'I have nobody to look after me,' and, he says, 'I don't intend to leave anything to the State nor the City--they did nothing for me--I am going to look after my friends,' and, he says, 'Mr. Parker in particular." That on another occasion Knapp said: 'He would see to it that he [Parker] would never have to want for anything as long as he lived.' The witness who followed stated that Knapp told him 'that he had made provision to take care of Mr. Parker during his lifetime--that is, Parker's lifetime,' and that 'Parker was to perform what little services there was out there and act as companion.' Claimant's last witness on this phase of the case said Knapp told him, 'That Mr. Parker would never have to worry, that he would certainly see that he was taken care of the rest of Mr. Parker's life and that they had an understanding to that effect.' In addition to the foregoing evidence claimant, through the agency of a family bible, established that he was born on February 26, 1870, and introduced the Colorado statute containing the mortality tables to establish his life expectancy.
The testimony so offered in support of the claim, consisting entirely of a recital of alleged oral statements of deceased against his interest, has often...
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