Soderland v. Graeber

• Decision Date: 14 January 1921
• Docket Number: No. 33285.,33285.
• Parties: SODERLAND ET AL. v. GRAEBER (ALSIN ET AL., INTERVENERS).
• Court: Iowa Supreme Court

190 Iowa 765

180 N.W. 745

SODERLAND ET AL.

v.GRAEBER (ALSIN ET AL., INTERVENERS).

No. 33285.

Supreme Court of Iowa.

Jan. 14, 1921.

Appeal from District Court, Boone County; G. D. Thompson, Judge.

Plaintiff filed his claim against the estate. Trial to a jury. At the close of all the evidence, interveners moved the court to direct a verdict for them, and the motion was sustained. The court dismissed and disallowed the claim, and rendered judgment against the claimant for costs. He appeals. Reversed.W. W. Goodykoontz and T. J. Mahoney, both of Boone, and Crom Bowen, of Des Moines, for appellant.

Harpel & Cedarquist and D. G. Baker, all of Boone, and S. O. Wald, of Slater, for interveners.

A. B. Schuetz, of Des Moines, for appellee.

PRESTON, J.

1. August 10, 1917, appellant filed his claim against the estate, claiming $5,000 for labor and services on the farm, and services in nursing and caring for his mother, the deceased, continuously from 1882 to the time of her death in December, 1915. On October 10, 1917, said claim was allowed by the administrator. April 14, 1919, separate petitions of intervention were filed by two sets of grandchildren of the deceased, being the children of her two deceased daughters. The interventions ask that the approval be set aside, and that the claim be disallowed. The administrator filed no pleading. Interveners recite that they are heirs, and interested, and ask that they be allowed to defend, since the administrator wrongfully approved the claim and declines to defend against it. The intervention by one set of heirs deny the claim of Lewis, and say that whatever services claimant rendered were rendered by him while residing with the decedent, as a member of her family; that they were gratuitous, and without expectation of compensation; that plaintiff has been fully paid by deceased in her lifetime, by exchange of services in the way of keeping house, doing the washing of and boarding claimant, and by delivery to him of cash and property at divers times, and his appropriation to his own use at divers times of money and property belonging to deceased; that so much of the claim for services rendered more than five years before the death of decedent is barred by the statute of limitations (Code, § 3447, subsec. 6). Other interveners say that, as heirs and distributees, they have an interest adverse to the claimant, Andrew Soderland, filed against said estate, and that the administrator has wrongfully approved said claim, and declines to defend, and make substantially the same allegations as to the claim of Andrew as the others make against the claim of Lewis.

As we understand the record, both Lewis and Andrew filed claims against the estate, but the claim of Lewis is the one tried and now presented for review. There is a long record, and we shall attempt not to go into details. We shall attempt to give some of the circumstances which, though some of them may be contradicted, thus making a conflict, show that the case should have been submitted to the jury. The question is as to the sufficiency of the evidence for that purpose, and whether the family relation existed; whether there was an express agreement to pay; whether deceased expected to compensate plaintiff; and whether plaintiff expected pay. There seems to be little dispute between counsel as to the law of the case.

Appellee claims that, where it is shown that the person rendering the service is a member of the family, and receiving support therein, a presumption of law arises that such services were gratuitous (citing Scully v. Scully, 28 Iowa, 548;Donovan v. Driscoll, 116 Iowa, 339, 90 N. W. 60;Estate of Squire, 168 Iowa, 597-604, 150 N. W. 706; and, Snyder v. Nixon, 176 N. W. 808-809); that the presumption of gratuitous services cannot be overcome, except by reasonably clear and satisfactory evidence (Donovan v. Driscoll, supra); that the presumption is not overcome by a showing of the value of the services, or of statements by deceased that the services were valuable (Donovan v. Driscoll, supra; Farmer v. Underwood, 164 Iowa, 587, 146 N. W. 18;Traver v. Shiner, 65 Iowa, 57, 21 N. W. 159;Cowell v. Roberts, 79 Mo. 218).

On the other hand, appellant says that the testimony warranted a finding by the jury that the services were rendered by claimant with the intention of charging for them, and were accepted by deceased with the intention of paying therefor; that mutual expectation may be shown by circumstantial evidence as well as by direct (Snyder v. Nixon, supra; Sheldon v. Thornburg, 153 Iowa, 662, 133 N. W. 1076;In re Oldfield, 175 Iowa, 118, 156 N. W. 977, L. R. A. 1916D, 1260, Ann. Cas. 1917D, 1067;Feltes v. Tobin, 171 N. W. 739;Wainright v. Kinder [Ind. App.] 120 N. E. 419); that it is sufficient if the facts fairly show mutual expectation of payment (Resso v. Lehan, 96 Iowa, 45, 64 N. W. 689); that the character and extent of the services and the circumstances under which they are rendered may be such as to exclude the idea of gratuity (Sheldon v. Thornburg, supra); that the presumption only applies where the services are such as might ordinarily be expected to be rendered by one member of a family to another (Snyder v. Nixon, supra); that it is not necessary that deceased should have known that plaintiff expected payment; that it is sufficient if, as a reasonably prudent person, she would have known it (Spencer v. Spencer, 181 Mass. 473, 63 N. E. 947); that any testimony warranting the inference that the services were not gratuitous, but rendered by plaintiff with the intention of charging for them, and justifiable expectation of being paid for them, and that they were accepted with the knowledge, actual or constructive, of this expectation, is sufficient to authorize a recovery (Hodge v. Hodge, 47 Wash. 196, 91 Pac. 764, 11 L. R. A. [N. S.] 901, and note).

Appellant claims that during the last 15 years of the mother's life claimant devoted himself entirely to her care, in caring for her interests, and that he gave up his own independent farming during that 15 years, which circumstance strongly imports an inference of mutual expectation of payment, and that the services were so ordinary as to compel the inference that the parties must have had a mutual expectation of payment; that where a son or daughter has left home, and returned when the parents are no longer able to care for themselves, is a strong circumstance in support of mutual expectation of payment. Marietta v. Marietta, 90 Iowa, 201, 57 N. W. 708.

We said in McGarvy v. Roods, 73 Iowa, 365-366, 35 N. W. 488, that, where the family relation exists, a promise to pay cannot be implied because the services were performed by one and accepted by the other, as would be the case if such relation did not exist, but that the claimant must go a step farther, and establish that there was an expectation by both parties that compensation should be paid, and that it is not essential that the amount of the compensation should be agreed upon. This, we take it, is upon the theory that, the above facts being established, the law implies that reasonable compensation shall be paid. See, also, Ogden v. Keerl, 152 Iowa, 106, 131 N. W. 682.

We shall not review the cases, but proceed to the general history of the case and the parties and a brief summary of the evidence of claimant bearing upon the questions presented.

As to some of the facts there is no dispute. There is a conflict at other points. It is conceded by appellant that the evidence does not show an express agreement that he should be paid for his services, and it cannot, we think, be justly claimed that he was not a member of the family at the time the services claimed for were performed. The evidence tends to show that deceased died intestate about December 13 or 14, 1915, at the age of about 78 years. She died as the result of a stroke of apoplexy. Claimant is about 65 years of age. He never married. At the time of his father's death in 1881 he was about 26 years old, Andrew 17, two other brothers between, and the mothers of interveners were then about 9 and 7 years of age. They died 17 or 18 years before the trial. The father died intestate in 1881, leaving the mother and six children, and an 80-acre farm, about one-third of it under cultivation. Part of the land was wet and swampy. The mother and children continued to live on the farm as a family until her death, except that as one by one they married or established homes elsewhere. At the time of his mother's death, and for several years prior thereto, only she and plaintiff of the family were left. The 80 acres were not partitioned until after the mother's death. Though the 80 acres belonged to the father, none of the heirs disturbed the mother's possession, and it does not appear that she paid rent to the heirs for the use of their undivided interests. There was no administration upon the father's estate, which was small. The property on hand and the crops were disposed of from time to time, and after a few years the mortgage on the land was paid off, and the place improved with barns, etc.

Plaintiff and some of the other boys had worked away from home for some years before the father's death, and at that date plaintiff and one of the others had become the owners of a 160-acre farm and a threshing outfit, both of which they continued to operate for some years. Andrew continued to live at home about 16 years after the father died, and then married in 1898. During this 16 years he did some work on the farm with plaintiff and attended to his other work away from home. After Andrew married he moved away from the place, but continued to do some work at home, about 60 days in each year thereafter, in collecting money for his mother, making deposits, and attending to some other business for her. For such services he has filed a claim against his mother's estate. The daughters married and moved away some 16 or 17 years after the father's death. Plaint...