Tarver v. Lindsey

• Decision Date: 26 October 1931
• Docket Number: 29530
• Citation: 161 Miss. 379,137 So. 93
• Court: Mississippi Supreme Court
• Parties: TARVER v. LINDSEY

137 So. 93

161 Miss. 379

TARVER v. LINDSEY

No. 29530

Supreme Court of Mississippi

October 26, 1931

Division B

1. EXECUTORS AND ADMINISTRATORS.

Claims for board or services furnished to a decedent must be established by clear and reasonably positive evidence.

2. EXECUTORS AND ADMINISTRATORS.

Those having reasonable and fairly well substantiated claims for board or services furnished a decedent should not be treated with any less consideration before courts than others.

3. EXECUTORS AND ADMINISTRATORS.

Evidence established express contract by deceased to pay niece for board.

4. EXECUTORS AND ADMINISTRATORS.

Presumption is that person coming to live with one not member of immediate family will arrange to pay reasonable board if financially able.

5. EXECUTORS AND ADMINISTRATORS.

Presumption is that stipulated amount for board and the like was paid reasonably near due date if decedent was well able to pay at time.

6. APPEAL AND ERROR.

Chancellor's finding on facts cannot stand on appeal if manifestly wrong.

7 EVIDENCE.

Where testimony of intelligent witnesses is undisputed, is reasonable, and in harmony with physical facts and facts of common observation, and witnesses are unimpeached, trier of facts must act on testimony.

HON. N R. SLEDGE, Chancellor.

APPEAL from chancery court of Lafayette county HON. N. R. SLEDGE, Chancellor.

A claim by Mrs. J. A. Tarver against the estate of S. A. Eastep, deceased, Sam Lindsey, administrator, was disallowed, and claimant appeals. Reversed and rendered.

Reversed, and decree here.

T. H. McElroy, of Oxford, for appellant.

The appellant claims she has met the burden of proof in law, by showing a positive and definite contract.

24 C. J., 406, sec. 1123.

The deceased in this case was a man of some means; the appellant was not under any obligation to furnish board and lodging free; the testimony uncontradicted by three witnesses is that there was a contract definitely entered into between the uncle and the niece; and that part of the board was paid during the time the deceased stayed with the appellant.

Evidence where three witnesses testify held sufficient at least, to require defendant to introduce testimony to overcome it.

Loviza v. Lynch, 115 Miss. 694, 76 So. 629.

Milton Williams, of Memphis, Tenn., for appellee.

Claims of the character of the one here involved, brought up for the first time after the death of the decedent, are looked upon by the courts with disfavor. In order to establish one, the evidence must clearly establish a contract, express or implied, between the claimant and decedent, providing therefor.

Hoyle et al. v. Smith et al., 113 Miss. 729, 74 So. 611; 18 Cyc. 409; 16 Cyc. 412.

Loose declarations of the decedent to a third person expressing a willingness to pay the claimant for services then being rendered by him, are insufficient to establish either that such services were not contemplated by the contract, or an agreement to pay extra therefor.

Bell v. Oates, 53 So. 491.

Particularly strong and convincing proof is required where a claim is stale, or where the service extended over a considerable period and no demand for compensation was ever made during decedent's life time, or where there are any circumstances connected with the claim tending to render it improbable or suspicious.

24 C. J. 406, sec. 1123.

Argued orally by T. H. McElroy, for appellant.

OPINION

Griffith, J.

On June 26, 1930, within the time allowed by law, appellant probated her claim against the estate of S. A. Eastep, deceased, for board and lodging from November 10, 1927, to October 31, 1929, at the rate of fifteen dollars per month amounting to the total of three hundred fifty-five dollars. The administrator admitted, after investigation on his part, that the claim was just and owing; but on November 15, 1930, Mrs. J. O. Barnes, one of the distributees in said estate, filed her protest and objections against the allowance of said claim or any part thereof, which objections upon a hearing by the chancellor were sustained, and the claim was disallowed.

The testimony, which is undisputed, shows that the deceased, Eastep, was a confederate veteran, and at the time of his death on October 31, 1929, was about eighty years old. He had never married, and with whom or how he had lived previously to the date next herein mentioned is not shown in the record, except for an inference to be drawn from a casual answer of one of the witnesses to the effect that a short time theretofore he had been living with a niece by the name of Brazier. He had no surviving brother or sister, and his nearest relatives were nephews and nieces, living in widely separated communities, but apparently the claimant, who was a niece, lived in the same community where the deceased had resided.

The husband of claimant testified that on the 10th day of October, 1926, Mr. Eastep came to the home of claimant and stated to the said husband of claimant that he desired to come and live with claimant and her said husband, "if you don't charge too much board." The husband referred the matter to his wife, the claimant, who was then and there present, whereupon Mr. Eastep turned to her and asked her what she would charge him for board, and she replied in the form of the interrogatory, "Will fifteen dollars a month be too much?" to which Mr. Eastep responded that the amount mentioned would be agreeable to him. The witness Hill, the husband of one of Mr. Eastep's nieces, testified that some time about Christmas of said year 1926 he went with his wife to visit Mr. Eastep and finding him at claimant's residence, inquired of him whether he expected to make that his home, to which Mr. Eastep replied in the affirmative and added in explanation that he had made arrangements with Mrs. Tarver, the claimant, to live with her and to pay her fifteen dollars a month board. The testimony of these two witnesses is undisputed.

The testimony is undisputed also that, from the time Mr. Eastep came to claimant's home and made the contractual arrangement aforesaid, he remained there until his death; that during the entire time he was unable to work, moved about with the aid of a cane, was sometimes sick, was at nearly all times taking medicine, and was constantly visiting a physician, upon which visits claimant and her husband would accompany him. There is no suggestion in the record that claimant and her husband were not uniformly kind to the old man and considerate of all his wants. On the contrary, every inference to be drawn from the record bears out the affirmative of that inquiry; whereas the record is to the effect that none of the others of his relatives were doing anything towards his care, save an occasional visit, and that, as to the objector in this case, she did not even do that.

The rule is well established in this state that claims for board or services furnished to a decedent must be established by clear and reasonably positive evidence and "that such claims and the evidence adduced to support them should be carefully scrutinized so as to prevent, as far as possible, the allowance of unjust or fictitious demands." 24 C. J., p. 404; Bell v. Oates, 97 Miss. 790, 53 So. 491; Hoyle v. Smith, 113 Miss. 729, 74 So. 611. But this does not mean that the solicitude for the integrity of decedents' estates shall be pushed to any such an extreme as that those who have reasonable and fairly well-substantiated claims of the nature here involved shall be treated with any less consideration before the courts than others who are required to apply there for the adjudication of their demands. Unjust and fictitious claims are to be rejected, certainly, and all claims of the nature here before the court must be cautiously examined, certainly; but we must not forget that, when a claim of this character, for the board of, and watching over, an old and physically dependent person, is a just claim, there is none other more just or meritorious.

We think the undisputed testimony of the two witnesses above mentioned is sufficient to establish an express contract to pay board at the rate of fifteen dollars per month, and certainly so when taken in connection with the circumstances hereinafter to be mentioned. The testimony of the said two witnesses has some direct corroboration in the testimony given by the circuit clerk of the county, who states that in the summer of 1929 Mr. Eastep said to him (said clerk) on an occasion when Mr. Eastep had bought a cold drink, that he (Eastep) would have to quit buying those drinks; that times were hard; that he could not draw his pension money; and that he did not see how he was going to pay his board. There is...