Reavis v. Reavis
| Decision Date | 01 February 1909 |
| Parties | ANNA REAVIS, Appellant, v. WM. R. REAVIS, Executor, etc., Respondent |
| Court | Kansas Court of Appeals |
Appeal from Pettis Circuit Court.--Hon. Louis Hoffman, Judge.
AFFIRMED.
Judgment affirmed.
Barnett & Barnett for appellant.
(1) The court erred in giving a peremptory instruction in this case directing a verdict for defendant and in refusing to give the instructions one and two asked by the plaintiff. It was for the jury to say whether the plaintiff had rendered extra and additional services in nursing her mother which were not included in nor contemplated by the provisions of the contract, which had been made for $ 150 per year. Where the contract is made for a specific sum for taking care of a relative, the contract must be taken as fixing the compensation under the existing circumstances and when by reason of a change in the conditions, the care became greater and more burdensome, the party rendering the services is entitled to additional compensation, and the fact, that the plaintiff was paid compensation for her services as housekeeper does not raise the presumption that the payment covered also compensation for care on account of sickness and a helpless condition. Hopper v. Oldis, 7 A. (N. J Eq.), 349; Fry v. Fry, 119 Mo.App. 479; Morrow v. Dowell, 116 Mo.App. 289. (2) But the case at bar is more favorable to the claimant than any of the cases cited. Under the evidence, at the time the contract was made for $ 150 a year, and at the time the application was made to the probate court for payment of this contract price and at the time the order of the court was made allowing this sum, Mrs. Reavis needed practically no nursing at all, and that allowance was intended to cover and did cover services as housekeeper and of course such incidental care and nursing as might occasionally be needed, but the helpless condition of Mrs. Reavis could not have been contemplated at that time. (3) The order of the probate court allowing plaintiff $ 150 per year of course is based upon the condition of affairs as they then existed and could not be treated as an order providing for compensation for extra services to be rendered in the future, when it could not be known that such extra services would be required, but if the court had so intended it, it could not have that effect, because no such allowance is asked for in the application. The application is nothing in the world but a claim for services which had already been rendered and the court had no jurisdiction to allow anything else based on that claim.
George F. Longan and Charles E. Yeater for respondent.
(1) The written petition filed by the plaintiff in the probate court, prayed for an order for the payment of the previous year's services, "and for all other orders that might seem right to the court," and the judgment and order recites that the plaintiff was present at the hearing asking for an order for $ 150 for the past year's services, and for an order "to pay her said sum per year so long as she continues to render such services," which order was made on the evidence heard, and the plaintiff is bound by her petition and the judgment and order thereon, and cannot dispute the same or any finding therein. Cooper v. Duncan, 22 Mo.App. 359; Camden v. Plain, 91 Mo. 129; Munday v. Leeper, 120 Mo. 419; In re Tucker, 74 Mo.App. 335; Macey v. Stark, 116 Mo. 494; Price v. R. E. Assn., 101 Mo. 116; Case v. Gorton, 33 Mo.App. 606; Brown v. Woody, 22 Mo.App. 258; Donell v. Wright, 147 Mo. 647. (2) The order made by the probate court provided the amount of future pay to the plaintiff until further orders of this court, and the plaintiff, having accepted the benefits of the same under the order of the court for over eight years until the death of her mother, without asking the further or future order, provided for by the court for an increase of compensation, cannot claim the compensation described in her written claim as additional to that allowed by the court, and that even if the order and judgment of the court is absolutely void. Arthur v. Izrael, 25 P. 81; Denver, etc., Co. v. Middaugh, 21 P. 565; Boulder v. Ditch Co., 43 P. 530; Daniels v. Tearney, 102 U.S. 415; Duff v. Wyncoop, 74 Pa. St. 306; Kile v. Town of Yellowhead, 80 Ill. 211; Brown v. Appleman, 83 Mo.App. 84.
Plaintiff presented a claim to the probate court for services rendered her mother, Celia Reavis, in caring for and nursing her during the latter years of her life. The trial court, where the case was taken by appeal, sustained a demurrer to the evidence, and plaintiff has brought the case here.
The claim is against the estate of Daniel Reavis, plaintiff's deceased father. Daniel made a will wherein he left his estate to Celia, his widow, during her life, and providing that if Celia became unable to care for the estate then executors were to do so. She was not able to care for the estate and it was placed in the hands of her son Samuel, who managed it as executor until his death, when it was placed in charge of the present defendant, William, also a son. At the father's death all the children were married and living in homes of their own except this plaintiff, and it was agreed among them that plaintiff, besides her board, should receive $ 150 per year in caring for her mother and keeping house. This was paid to her by Samuel as long as he lived, but on his death this defendant thought it more prudent to have...
To continue reading
Request your trial