Parnham v. Weeks

Decision Date25 June 1917
Docket Number30498
Citation163 N.W. 454,180 Iowa 649
PartiesJOHN H. PARNHAM, Appellee, v. F. R. WEEKS, Administrator, et al., Appellants
CourtIowa Supreme Court

Appeal from Audubon District Court.--E. B. WOODRUFF, Judge.

APPEAL from judgment in favor of a claimant against an estate. Defense by permission of court in name of administrator by the heirs. The facts are stated in the opinion.--Affirmed in part; reversed in part.

Cause affirmed upon defendants' appeal and reversed upon plaintiff's appeal, with directions.

Mantz & White, for appellants.

J. M Graham, S. C. Kerberg and T. M. Rasmussen, for appellee.

STEVENS J. GAYNOR, C. J., WEAVER and PRESTON, JJ., concur.

OPINION

STEVENS, J.

In July, 1909, Millicent Parnham died testate, seized in fee of 220 acres of land, a house and lot in the town of Audubon and some money. Her husband, George Parnham, survived her. To him she bequeathed, in lieu of dower, the life use of the 220 acres of land. Her will further provided that, in the event he should refuse to consent to this provision of her will, then her real estate was bequeathed, one half to John Parnham, appellee herein, and the rest to Charles Robert Parnham for life, remainder to his children. Shortly after the death of Millicent Parnham, John Parnham qualified as executor of her estate. On July 4, 1911, George Parnham died intestate, without property. Shortly thereafter, upon the application of John Parnham, F. R. Weeks was appointed administrator of his estate. In March, 1909, George and Millicent Parnham went to live with John Parnham upon the 220-acre tract, which was situated in Audubon County. They continued to reside at his home until their death. John Parnham filed a claim against the estate of George Parnham, deceased, in the sum of $ 2,550, claiming that said amount was due him for care, nursing, board and support of his father during the time he resided with him after March, 1909. The administrator allowed the claim as a claim of the third class. On December 30, 1913, upon application of appellants, except F. R. Weeks, the allowance of said claim by the administrator was set aside by the court, and the same set down for hearing on its merits. The court, at the same time, granted to the heirs of George Parnham permission to defend against said claim in the name of the administrator. Appellee stated his cause of action in two counts: (a) Upon a contract, by the terms of which deceased promised and agreed to pay appellee for his board, care and nursing, while he lived in the home of appellee; (b) for the reasonable value of the board, care, nursing and other services rendered to the said George Parnham. Shortly after George and Millicent Parnham went to live at the home of claimant, there appears to have been a conversation one morning at the breakfast table between John Parnham and his mother, in which the matter of compensation for their board and care was discussed. The record is not clear as to exactly what was said, but enough is given so that the inference may be drawn that all of the parties understood that John Parnham would be paid for the services to be rendered to both the father and the mother. The father, apparently, took little, if any, part in the conversation, but was present, and, so far as the record discloses, heard all that was said between the parties. George Parnham was past 80 years of age, very feeble and infirm, and, the evidence tended to show, required much care and attention upon the part of claimant and his family. No testimony was offered on behalf of appellants for the purpose of disputing either the extent or value of the services rendered by John Parnham and family, but appellants base their defense upon the following grounds; (a) That George Parnham was mentally incompetent to make the contract alleged by claimant for board, care nursing and other services; (b) that the services were rendered gratuitously, and without the intention of charging therefor, and without the expectation that any compensation would be made to him; (c) that appellee had been fully paid for all services rendered prior to the time claim in suit was filed. The jury returned a verdict in favor of claimant for the full amount of his claim. Judgment was rendered in accordance with the verdict. Both parties appeal, the appeal of the administrator being from the judgment against him for costs. The defendants will be treated as appellants herein.

I. Appellants offered in evidence the first and second annual reports of John Parnham as executor of his mother's estate, but only a portion of said reports was admitted by the court. In the first annual report, which was filed prior to the death of his father, appellee, among other matters, stated that:

"In addition to said personal property, said decedent owned certain real estate in said county, a life estate in which was devised by the will in said estate to the husband of said decedent, George Parnham; * * * that said George Parnham requires constant care, and it has been necessary for this executor to provide a home for him and otherwise care for him; that he is entitled to pay for said services; that he believes the same to be reasonably worth the sum of $ .50 per day."

In the second annual report, he said:

"He (John Parnham) shows to the court that George Parnham, holder of a life estate in the real estate belonging to said estate, died on or about July 4, 1911; that he has paid all the bills for care and maintenance of said George Parnham up to the time of his death."

The above extracts from the two reports, together with Exhibit C attached to the first annual report, which purported to be a "statement of moneys paid out for care of George Parnham, and for expense in keeping up and repairing property of the estate," together with other portions of the second annual report, were admitted by the court.

The record is not quite clear as to exactly what part of the second annual report was received. The court, upon objection by appellee, excluded all that part of each of said reports that did not in some way refer to the expenditure of funds by appellee in payment of the care, nursing and board of George Parnham, or of repairs upon the farm. Appellant insists that the court committed error in refusing to permit the whole of said reports to be received in evidence. Appellee, called as a witness in his own behalf, was permitted to detail at some length the services claimed to have been rendered by himself and family to George Parnham, and, upon cross-examination, was interrogated fully in regard to all of the matters gone over in chief. He testified to the income derived from the real estate belonging to the estate of his mother, and to the payment of certain items therein referred to for the use and benefit of his father. He denied that he had been paid for his services, or that the same were rendered gratuitously and without the intention to charge therefor, and stated that he fully expected to be compensated for the services rendered.

The only purpose for which these reports were offered in evidence was to show that appellee had made statements, admissions and declarations inconsistent with the claim he was then making against the estate of his father, and that the same tended to show that whatever services were rendered by himself and family to George Parnham were rendered without the intention to either charge or receive compensation therefor. Every statement and item contained in said reports tending, even remotely, to establish the claims asserted by appellants, were admitted in evidence. In fact, it is practically conceded by appellants that the court admitted all that was contained in said reports tending in any way to directly discredit the claim of appellee that he intended to charge for the services rendered, or that he had not previously been paid therefor; but contend that the said reports, taken as a whole, would have justified the jury in inferring that appellee had at no time prior to the death of his father intended to claim anything for the services rendered to him; that is, notwithstanding that the portions of the two reports excluded by the court contained no reference to the matter of compensation or services rendered, yet, when taken in connection with the parts admitted, they were more persuasive and convincing than the extracts admitted, standing alone.

As before stated, George Parnham died without having elected to consent to the provisions of his wife's will, and therefore the claim is made that he died seized of an undivided one third of the real estate belonging to her at the time of her death. Except the interest which he had in her estate, he...

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