Scurry v. Sheehan (In re Lyons' Estate)

• Decision Date: 14 February 1940
• Docket Number: Gen. No. 40938.
• Parties: IN RE LYONS' ESTATE. SCURRY v. SHEEHAN.
• Court: United States Appellate Court of Illinois

303 Ill.App. 642

25 N.E.2d 555

IN RE LYONS' ESTATE.

SCURRY

v.SHEEHAN.

Gen. No. 40938.

Appellate Court of Illinois, First District, Third Division.

Feb. 14, 1940.

Appeal from Circuit Court, Cook County; Benjamin P. Epstein, Judge.

Proceeding in the matter of the estate of Matthew B. Lyons, deceased, by Mary Wyley Scurry against Winifred Sheehan, as administratrix with the will annexed of the Estate of Matthew B. Lyons, deceased, on a claim for housekeeper and nursing services rendered by the plaintiff for the deceased. Verdict for the plaintiff and from an order granting a new trial plaintiff appeals.

Reversed and rendered.

Patrick J. Allman, of Chicago, for appellant.

Joseph F. Elward and Raymond F. McNally, Jr., both of Chicago, for appellee.

HEBEL, Justice.

The plaintiff petitioned this court for leave to appeal from an order granting a new trial, such petition being filed under and by virtue of Section 77 of the Illinois Civil Practice Act, Ill.Rev.Stat.1937, Ch. 110, § 201, and Rule 40 of the Supreme Court of Illinois, and the appeal was allowed by this court.

This action was commenced in the Probate Court of Cook County upon the plaintiff's claim against the defendant, administratrix, on account of housekeeper and nursing services rendered by the plaintiff for the deceased from February 17, 1932 to January, 1938. Upon appeal to the Circuit Court of Cook County, a trial de novo was had with a jury. A motion for a directed verdict was made by the defendant at the close of all the evidence, and the court reserved its ruling. The jury returned a verdict which allowed the plaintiff's claim for $2,500. The defendant made motions for judgment notwithstanding the verdict and for a new trial. Upon argument of the motions the trial court denied the motion for a directed verdict made at the close of all the evidence, and denied the motion for judgment notwithstanding the verdict. Subsequently, the trial court allowed the defendant's motion for a new trial.

The plaintiff's contention is that the evidence adduced in behalf of her, although related as sister-in-law of the deceased, was sufficient in law to rebut the presumption that her services were intended to be gratuitous, and she further suggests that counsel for the defendant will not dispute the proposition that the Illinois courts consistently have held that where housekeeping services are rendered by one who stands in the family relation with the deceased, and who then acts to charge the deceased estate with the value of the services, the presumption is that the services were intended to be gratuitous. This presumption, however, may be overcome by proof of facts or circumstances which show that the deceased intended that compensation would be paid and that the claimant intended to receive compensation, both intentions existing at the time the services were rendered.

The defendant's reply to this contention is that the burden is on the plaintiff to prove her case by a preponderance of the evidence, and in addition overcome the presumption that the services were rendered gratuitously, because of the family relationship existing between the plaintiff and the deceased. To overcome this presumption it was necessary for the plaintiff to prove that when the services were rendered she expected to receive payment and the deceased to make payment.

Therefore, under the issues involved in this litigation it was incumbent upon the plaintiff to prove at the trial, and the plaintiff maintains now that it has been proved, that the evidence shows that the services rendered by her were intended by her and by the deceased to be paid for by him. It does appear from the evidence which was offered by the plaintiff that the services were performed by her from 1932 until the death of Mr. Lyons on January 17, 1938. It also appears from the evidence that all of the witnesses, except Mr. Nicholsen, had been in the home of the deceased, and had actually seen the plaintiff perform the services as housekeeper.

The testimony of Mr. Blatt and Mr. Hellman, witnesses who appeared at the trial, tends to show that both witnesses had heard the deceased say on numerous occasions during the last five or six years of his lifetime that he did not know how he could get along without his sister-in-law keeping house for him, and that he was “really going to take care of her later on” on account of the work she had done for him, and Mr. Hellman further testified that the deceased told him that he was not paying the plaintiff anything at the time, but that the payment would come later, and that he definitely intended to “take care of her” for the rest of her life, on account of the work she had done for him. It further appears from the evidence of Mr. Hellman that the deceased had told his sister-in-law, the plaintiff, that he intended to take care of her on account of the work she had been doing for him, and that the deceased had made this remark to the witnesses as often as once a week from the spring of 1933 until a few months before his death in January, 1938.

A further witness for the plaintiff, Carl W. Myland, who had been working in the same department as the deceased with the Pullman Company, testified that when he was working with the deceased he had numerous conversations in regard to the plaintiff, and the deceased had repeatedly stated that he had a wonderful housekeeper, and that he, the witness, had been in the home of the deceased and had seen the plaintiff working in the kitchen and taking care of him when he was sick.

The evidence of Mr. Nicholsen, who testified he had a conversation with Mr. Lyons when he came back to work after an illness in December, 1937, is to the effect that at this time the deceased told the witness: “I don't know how I could have got along without my sister-in-law”, that as a nurse she certainly was a wizard. He said that he had nothing to worry about, and certainly not in the future. So it does not appear that there was any controversy regarding the credibility of the witnesses or as to the evidence that was given before the jury. The sole question seems to be whether the evidence was sufficient to establish that the plaintiff was to be paid and that she would receive remuneration for her services. In the determination of this question it is best to consider the cases in which the courts have passed upon a like question.

In the case of Switzer v. Kee, 146 Ill. 577, 35 N.E. 160, 161, a son was seeking to recover compensation by an allowance in the Probate Court in the estate of his deceased mother for services rendered, and upon an appeal in the Circuit Court the question arose as to whether he being the son was entitled to compensation, and one of...