Stephens v. Duckworth

• Citation: 188 Miss. 626,196 So. 219
• Decision Date: 13 May 1940
• Docket Number: 34148
• Court: Mississippi Supreme Court
• Parties: STEPHENS v. DUCKWORTH et al

196 So. 219

188 Miss. 626

STEPHENS v. DUCKWORTH et al

No. 34148

Supreme Court of Mississippi, Division B

May 13, 1940

APPFAL from the chancery court of Simpson county, HON. BEN STEVENS Chancellor.

Action by Mrs. Sallie Stephens against Mrs. Cody Duckworth and others, to recover property. From a decree of the chancery court reversing findings of a master in favor of petitioner petitioner appeals. Reversed and rendered.

Reversed and decree here for appellant.

Jones &amp Ray, Lotterhos & Travis, and Vardaman S. Dunn, all of Jackson, for appellant.

It was unnecessary to probate the petition for the reasonable value of services rendered, for the reason that the claim was unliquidated and upon which appellant was required to go into the proper forum and have the validity and amount of the claim ascertained.

The claim is upon a quantum meruit.

Words and Phrases, 4th Ed.; Ellis v. Berry, 145 Miss. 652, 110 So. 211; First National Bank v. Owen, 177 Miss. 339, 171 So. 4; Hickman v. Slough, 193 So. 443.

Appellant's claim was unliquidated.

Words and Phrases, 5th Ed.; 14 C. J. S. 1186; Leader v. Vaughan (Ala.), 103 So. 718.

Unliquidated claims are not required to be probated.

Code of 1930, sec. 1671, as amended by Laws of 1934, chap. 304, secs. 1672, 1674, 1678; Drainage Dist. No. 1 of Noxubee County v. Evans, 136 Miss. 178, 99 So. 819; Dillard & Coffin v. Woollard, 124 Miss. 677, 87 So. 148; Boyd v. Applewhite, 121 Miss. 879, 84 So. 16; Harris v. Hutcheson, 65 Miss. 9, 3 So. 34; Jones v. Bank, 71 Miss. 1023, 16 So. 344; Savings Assn. v. Tart, 81 Miss. 276, 32 So. 115; Feld v. Borodofski, 87 Miss. 727, 49 So. 816; Neis v. Farquharson (Wash.), 17 P. 697; Wells v. Hobbs (Tex.), 122 S.W. 451; Massie v. De Shields (Tex.), 62 S.W.2d 322; Goldman v. Ramsey (Tex.), 62 S.W.2d 177; Hornbeck v. Richards (Mont.), 257 P. 1025.

The evidence was sufficient to sustain the findings of the master that an express contract for and mutual expectation of compensation for the services existed. In addition to this, the exceptions of appellees to the master's report have not presented the point for review.

Hines v. Imperial Naval Stores, 101 Miss. 802, 58. So. 650; Daniel v. Klein, 149 Miss. 135, 115 So. 193; Hattiesburg Lbr. Co. v. Herrick (C. C. A. 5th Cir.), 212 F. 834; Hutcheson v. Tucker, 15 So. 132; Bell v. Oates, 97 Miss. 790, 53 So. 491; Hoyle v. Smith, 113 Miss. 729, 74 So. 611; Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109; Ellis v. Berry, 145 Miss. 652, 110 So. 211; Tarver v. Lindsey, 161 Miss. 379, 137 So. 93; In re Burkett's Estate, 186 So. 834; Wright v. Coleman, 137 Miss. 699, 102 So. 774; 2 Elliott on Contracts, sec. 1367; Griffith's Chan. Practice, sec. 605; 19 Am. Jur., sec. 377.

The evidence is sufficient from which to determine the reasonable value of the services rendered, for the reason that the kind, nature and extent of the services are fully shown by the evidence, and knowledge of their value comes within the experience of all sensible persons.

First National Bank v. Owen, 177 Miss. 339, 171 So. 4; 71 C. J., sec. 121; Hickman v. Slough, 193 So. 443.

The three-year Statute of Limitations does not apply, for the reason that the services were continuous and the contract to compensate appellant therefor was not breached until the death of the deceased.

Ellis v. Berry, 145 Miss. 652, 110 So. 211; Carter v. Witherspoon, 156 Miss. 597, 126 So. 388; Gaulden v. Ramsey, 123 Miss. 1, 85 So. 109; Lee v. Lee's Estate, 191 So. 661; McCulley v. McCulley, 175 Miss. 876, 168 So. 608.

James B. Sykes, of Mendenhall, and H. W. Hobbs, of Jackson, for appellees.

In view of the time available for the preparation of this reply brief, appellees direct their attention to the point that appellant's claim for services against the estate of W. J. Tullos, deceased, her father, with whom she resided for several years prior to his death, should be viewed with suspicion, due to her relationship to the deceased and other circumstances shown by the record, all of which raise the presumption that her services were gratuitous, as against any claim to specific property or any compensation upon the death of her father, and she failed to overcome the presumption by evidence that is clear and positive, and failed to establish her claim by a preponderance of the credible evidence, with the result that the decree of the lower court should be affirmed.

Bell v. Oates, 97 Miss. 790, 53 So. 491; Hoyle v. Smith, 113 Miss. 729, 74 So. 611; Tarver v. Lindsey, 161 Miss. 379, 137 So. 93; 24 C. J. 279, 281.

It may as well be said that the mere statement of a claim of the character presented here, without making known all of the facts and circumstances surrounding it, is calculated to arouse at once the keenest sympathy and interest, but upon a calm and deliberate view of all the facts and circumstances showing and tending to show the real situation of the parties, and the natural and probable course of their statements and conduct, one comes to the realization that the claimant in a case like this has received in the lifetime of her decedent all that she was entitled to, both for herself and her children, and all that her decedent ever intended for her to receive, aside from her right to share equally with the other heirs in the estate of her decedent.

In view of the nature of the claim presented in this case, the situation of the parties, the presumption that the alleged services were gratuitous, and other facts and circumstances reflected by the record, appellees submit that the final decree of the lower court be affirmed.

OPINION

McGowen, J.

On June 16, 1938, W. J. Tullos died intestate, and his son, John R. Tullos, was appointed administrator of his estate. His daughter, Mrs. Sallie Stephens, filed her petition in the Chancery Court, alleging that for a period of about eight years, from March 27, 1930, she had been induced by her father to leave her own home, and remove, with her four minor children, to his home in order to take care of him and his place, consisting of 40 acres; promising that he would give her the home place at his death. In her petition she set up that there was an express contract, not an implied one, which had been breached by her father, in that he made no sort of conveyance to her of this real property together with certain personal property on the place.

The administrator filed an answer, in which he admitted that the deceased made the promise alleged in the petition. A number of heirs-at-law of the deceased were permitted by the court to intervene and file an answer; and they sharply denied that there had been any sort of contract between the deceased and Mrs. Stephens. In their answer they plead the statute of limitation of three years, and that the claim propounded by Mrs. Stephens in her petition had not been probated.

By agreement of the parties R. G. Livingston was appointed special master by the court, and was fully invested with all the powers conferred by law, with instructions to report his finding of facts involved in the proceedings to the court. The master heard the evidence and filed his report in the Chancery Court. Mrs. Duckworth and the other heirs-at-law filed their exceptions, which were overruled by the master, he having found that the contract to render services had been entered into by the decedent and Mrs. Stephens in his lifetime, and that she was entitled on quantum meruit to receive $ 20 per month for 95 months, as reasonable compensation for services performed by her, aggregating a total value of $ 1, 900. He further reported, as a matter of law, that the amount of recovery sought was not a provable claim; that the contract was a continuous one, and that, therefore, the statute of limitations did not apply.

Upon the filing of the report the appellees, the contesting heirs-at-law, filed exceptions thereto, which were overruled by the master. The Chancellor, upon hearing the report of the master, and the exceptions, reversed each finding of the master, both upon points of law, and upon the facts. The Chancellor held that no contract was entered into between the parties; that the recovery sought was a claim against the estate which had not been probated, and that the master did not have before him any proof of the value of the services rendered by Mrs. Stephens to the decedent in his life-time.

W. J Tullos was an old man, unable to read or write. About three weeks before this contract was entered into with his daughter his wife became ill, and he sent for Mrs. Stephens to come and nurse her mother. She was employed as a laundry checker in the Sanatorium laundry at Magee, at a salary of $ 40 a month; upon receiving her father's message she gave up the place, nursed her mother until she died, and then did not return to her former work. In a few days John Tullos, the administrator, advised his father to have Mrs. Stephens move to his home, to take care of him and the place. This suggestion met with the approval of decedent, and he sent his son to interview Mrs. Stephens, who declined to give up her home and move to her father's home. Thereafter the decedent sent Will Jones, his long-time friend and business adviser, with John Tullos to see Mrs. Stephens, telling them to say to her that if she would move into his home with her children, and take care of him and his place, he would give her the home place and everything on it. They delivered the message, and she reluctantly accepted and promptly moved to her father's home, where she remained until his death. This was testified to in great detail both by the friend, Will Jones, and by John Tullos, brother of the appellant. There was considerable evidence to the effect that throughout the years his daughter lived with him the decedent expressed...