Taber v. McGregor

• Citation: 192 Ky. 600,234 S.W. 194
• Parties: TABER v. MCGREGOR ET AL.
• Decision Date: 25 October 1921
• Court: Court of Appeals of Kentucky

234 S.W. 194

192 Ky. 600

TABER v. MCGREGOR ET AL.

Court of Appeals of Kentucky.

October 25, 1921

Appeal from Circuit Court, Caldwell County.

Action by Susie Taber against Marshall McGregor and others. Judgment for defendants, and plaintiff appeals. Reversed.

John G Miller, of Princeton, for appellant.

John C Gates, of Princeton, for appellees.

SETTLE J.

The judgment of the Caldwell circuit court from which this appeal is being prosecuted, dismissed, on the final hearing, an action in equity brought therein by the appellant. Susie Taber, against the appellees, Marshall McGregor and others children and only heirs at law of Loton McGregor, deceased seeking to recover of them $650 for labor, nursing, and other personal services, claimed to have been performed by her for their deceased father beginning May 20, 1916, and, without intermission, ending July 21, 1918, thereby embracing two years and two months immediately preceding his death, which occurred on the latter date.

It was alleged in the petition that the services in question were rendered by the appellant under an express contract made by the deceased with her for their performance and upon his promise, therein and thereby made, to compensate her for such services by providing her and her infant son with a home and board and paying her $25 per month while she remained in his employ. The nature and extent of these services fully appear from the averments of the petition.

It also appears from other averments of that pleading, and is admitted by the appellees, that appellant was a sister of Loton McGregor; that the latter at the time of his death, July 21, 1918, was unmarried and had been a widower more than three years; that he was survived by three children who are his only heirs at law, viz., the appellees, Marshall McGregor, Mahlon McGregor, and Jean Littlefield, wife of David Littlefield, all being adults, and Marshall, a resident of Vicksburg, Miss., Mahlon, a resident of Louisville, Ky. but teaching school in Tennessee, and Jean and her husband residents of Hopkinsville, Ky. It further appears from the petition, and is admitted by the appellees, that Loton McGregor died intestate, domiciled in Caldwell county, this state, owning and being seized of both real and personal estate, the realty consisting of an undivided interest of one-half in about 75 acres of land near Princeton, the county seat of Caldwell county, upon which he resided at the time of his death and the title to which had formerly been jointly held by himself and wife, the value of such half interest being approximately $1,000; the personal property consisting of household and kitchen furniture, farming implements, farm products, live stock, and life insurance, worth, altogether, at least $1,500.

It does not appear that there was any appointment of an administrator for the decedent's estate, or that any administration of the personal estate was had or attempted; but it is alleged in the petition that both the real and personal estate was appropriated by the appellees, his three children, and by them divided and distributed among themselves as his heirs at law; and that by so doing, without first paying the appellant's debt against the decedent's estate, the debt became a lien on the property distributed in their possession, and they, under the laws of this state, became and are personally liable for her debt, each to the extent and value of the property so appropriated and received by him or her; and that the value of the share received by each heir exceeded in amount the appellant's debt.

The denials contained in the joint and several answer of the appellees put in issue all the averments of the petition respecting the contract claimed to have been made by the decedent with appellant for the labor and services sued for; likewise all its averments as to the character, performance, and value of such services. In addition, it was alleged in the answer that such labor or services as was performed by the appellant for their father was voluntary and gratuitous because of their relationship as brother and sister, and that she was fully compensated therefor by being furnished by the brother with a home and board for herself and infant child and by her appropriation of the proceeds of certain products of the farm sold by her. All affirmative matter of the answer was controverted by reply.

The reversal of the judgment appealed from is asked by the appellant on the single ground that it is contrary to law and unsupported by the evidence. The law controlling this case is well settled in this jurisdiction. In numerous cases this court has declared that where the relationship of the parties was sufficient to raise the presumption that they lived together as a matter of mutual convenience, the law will not imply a promise to pay for such services as those for which the appellant is claiming compensation, but that in such case to authorize a recovery for the services an express contract must be proved. This rule has been declared applicable in the case of parent and child, and brother and sister. Bolling v. Bolling's Adm'r, 146 Ky. 313, 142 S.W. 387, Ann. Cas. 1913C, 306; Bishop v. Newman's Ex'r, 168 Ky. 238, 182 S.W. 165; Price v. Price's Ex'r, 101 Ky. 28, 39 S.W. 429, 19 Ky. Law Rep. 211; Leahy v. Lillard, 80 S.W. 1112, 26 Ky. Law Rep. 120; Mark's Adm'r v. Boardman, 89 S.W. 481, 28 Ky. Law Rep. 455, 1 L. R. A. (N. S.) 819; Wallace v. Denny's Adm'r, 90 S.W. 1046, 28 Ky. Law Rep. 978; Foley v. Dillon, etc., 105 S.W. 461, 32 Ky. Law Rep. 222; Reynolds' Adm'r v. Reynolds, 92 Ky. 556, 18 S.W. 517, 13 Ky. Law Rep. 793; Conway, etc., v. Conway, etc., 130 Ky. 218, 113 S.W. 94. Likewise applicable in the case of uncle or aunt and nephew or niece. Weir v. Weir's Adm'r, 3 B. Mon. 645, 39 Am. Dec. 487; Hays v. McConnell, 42 Ind. 285; Sloan v. Dale, 90 Mo.App. 87; Hurst v. Lane, 105 Ga. 506, 31 S.E. 135; Collar v. Patterson, 137 Ill. 403, 27 N.E. 604; Robinson v. McAfee, 59 Mich. 375, 26 N.W. 643; Defrance v. Austin, 9 Pa. 309; Hicks v. Barnes, 132 N.C. 146, 43 S.E. 604; Andrus v. Foster, 17 Vt. 556; Riley v. Riley, 38 W.Va. 283, 18 S.E. 569. In some of the cases decided by this court it was held that to authorize a recovery for such services where the relationship referred to existed, they must have been rendered under an express agreement that compensation would be made, or at the special instance or request of the beneficiary and with the expectation on the part of both parties that the services would be paid for. One of the cases so holding was that of Galloway v. Galloway's Adm'r, 70 S.W. 48, 24 Ky. Law Rep. 857, in which the plaintiff was a niece of the defendant's intestate; but among the more recent cases decided by the court, such as Bolling v. Bolling's Adm'r and Bishop v. Newman's Ex'r, supra, the plaintiff in the first being a nephew, and in the second a daughter, of the beneficiary of the services rendered, it was held that in the absence of satisfactory proof of an express contract to pay for the services rendered, the only presumption permissible was that the services were gratuitous, and that mere statements made to others by the beneficiary of the services before his death expressive of his gratitude to the performer of such services or of his wish or intention to pay for same were not of themselves sufficient to establish an express contract to make compensation. In each of these cases, however, the necessity for proof of an express contract for the services and for the compensation claimed is made to rest, not upon the relationship of the parties alone, but upon that and the further fact that they resided in the same house and lived as members of the same family.

Applying to the evidence found in this record the principles of law set forth by the authorities, supra, it only remains to determine whether it sustains the appellant's contention that it does not support the judgment of the chancellor.

It appears from the evidence and is nowhere contradicted that the wife of Loton McGregor died in the spring of 1915 leaving him, save for the presence of a small 11 year old girl to whom the wife had given...