Taylor v. Thieman (In re Taylor's Estate)

• Decision Date: 19 March 1907
• Parties: IN RE TAYLOR'S ESTATE. TAYLOR v. THIEMAN.
• Court: Wisconsin Supreme Court

132 Wis. 38

111 N.W. 229

IN RE TAYLOR'S ESTATE.TAYLOR

v.THIEMAN.^a1

Supreme Court of Wisconsin.

March 19, 1907.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Proceedings for the allowance of the claim of John H. Taylor against the estate of Albert Taylor, deceased. From a judgment for claimant, John F. Thieman, administrator of the estate, appeals. Reversed, and remanded for a new trial.

This is a claim against the estate of Albert Taylor, deceased. It was wholly disallowed in the county court, and the claimant appealed. After trial in the circuit court, he secured a verdict for $1,260.24, upon which judgment was entered, and the administrator appeals.

It appeared upon the trial that the deceased, Albert Taylor, in 1855, was a farmer, living with his wife upon a farm which he owned in the town of Greenfield, Milwaukee county, and that in June, 1855, the claimant, being then an orphan five years of age not related to the deceased, went to live with the deceased as a member of his family upon the farm; that the deceased had no children of his own, and that the claimant was taken into the family and treated as a son, though not formally adopted, and recognized as an adopted son and as a member of the family by the deceased and his relatives; that in June, 1870, the claimant enlisted in the regular army, and remained in the army until June, 1875, when his term of enlistment expired and he returned to the home of the deceased, and worked on the farm until February, 1876, when the deceased sold his farm, and the claimant rented a farm a mile distant and commenced business for himself; that from February, 1876, until some time in 1884 the deceased lived during the greater part of the time in Indiana, but in the last-named year returned to Wisconsin and took up his residence in the town of Wauwatosa, in his own house, and lived there until some time in October, 1896; that the wife of the deceased died in September, 1891; that in October, 1896, the deceased went to Crown Point, Ind., where he had some relatives, returning occasionally to Wauwatosa until he died, April 16, 1902, leaving a will executed September 22, 1896, by which he left all his property to Cassius M. Taylor, a relative residing in Lake county, Ind., which will has been duly probated in the county court of Milwaukee county; that the claimant was married in April, 1881, and has a son and daughter both of adult years. The testimony further tended to show that in April, 1893, the claimant was living with his family in the city of Milwaukee and that at this time the deceased, being alone in his house in Wauwatosa, requested the claimant and his family to come and live with him in Wauwatosa and that the claimant complied with the request; that from this time until the middle of September, 1895, the parties lived together in the house of the deceased; the claimant furnishing the meals, and his family doing the washing and other work, including care of the deceased when sick; that the claimant then moved to another house near by, but the deceased continued to room in his own house, and took his meals with the claimant, and the claimant's wife and family continued to do the washing, and to furnish him care when sick till he went to Indiana in October, 1896.

The claim, as originally filed in county court, was for the sum of $2,761.83, and contained a number of items for money advanced and farm labor performed between April, 1868, and November, 1887. As to the money items no testimony was given in the circuit court, and the court directed the jury that they should only consider the evidence bearing on the claim for board, nursing and care from 1893 to 1896. The only items during this period in the original claim were as follows:

+-----------------------------------------------------------------------------+
                ¦To board and lodging, from April, 1893, to September 1, 1895, 126     ¦$504  ¦
                ¦weeks at $4 per week                                                  ¦00    ¦
                +----------------------------------------------------------------------+------¦
                ¦To interest on same from September, 1895, to April, 1902, at 6 per    ¦166 32¦
                ¦cent.                                                                 ¦      ¦
                +----------------------------------------------------------------------+------¦
                ¦To board from September 1, 1895, to September 25, 1896, 56 weeks at $2¦112 00¦
                ¦per week                                                              ¦      ¦
                +----------------------------------------------------------------------+------¦
                ¦To interest on same from September, 1896, to April, 1902, at 6 per    ¦36 76 ¦
                ¦cent.                                                                 ¦      ¦
                +-----------------------------------------------------------------------------+
                

At the opening of the trial in the circuit court, against objection and exception, the court allowed the claimant to file an amended claim, adding a number of items to the original claim, aggregating $500; of which, however, the only items submitted to the jury were the following:

+-----------------------------------------------------------------------------+
                ¦To washing, sewing, mending, from April 1, 1893, to October 1, 1895, 78¦$ 58 ¦
                ¦weeks at $0.75 per week                                                ¦50   ¦
                +-----------------------------------------------------------------------+-----¦
                ¦To interest on same, 6 1/2 years at 6 per cent.                        ¦22 82¦
                +-----------------------------------------------------------------------+-----¦
                ¦To cooking, washing, mending, and cleaning, from October 1, 1895, to   ¦78 00¦
                ¦September 26, 1896, 52 weeks at $1.50 per week                         ¦     ¦
                +-----------------------------------------------------------------------+-----¦
                ¦To interest on same, 5 1/2 years at 6 per cent.                        ¦25 74¦
                +-----------------------------------------------------------------------------+
                

Thus it appears that the aggregate amount of the items submitted to the jury was $1,004.14, while the verdict of the jury was for $1,260.24.

After verdict the court, against objection and exception, allowed a further amended claim to be filed to conform with the verdict and evidence, in which the item for board, lodging, etc., from April, 1893, to September, 1895, was increased to $7 per week, instead of $4, and a like increase made in the item of board, etc., from September 20, 1895, to October 10, 1896, so as to make the aggregate of these two items $1,267.

Joseph G. Donnelly and John F. Thieman, for appellant.

W. A. Hayes, for respondent.

WINSLOW, J. (after stating the facts).

As appears by the statement of facts the circuit court allowed an amendment to the original claim as filed in the county court, which added two entirely new items, aggregating $185.06, and submitted them to the jury. This was clearly erroneous. This court has held that matters not presented in the county court cannot be brought into the controversy upon appeal, because the theory of the statute is that only claims which have been passed upon by the probate court, are to be considered upon the appeal. Sloan v. Duffy, 117 Wis. 480, 94 N. W. 342. The circuit court has undoubtedly power to allow amendments in its discretion to such claims, but the amendment must be within the scope of the claim presented to the county court. It cannot present an entirely new item or claim. Where the original claim is for the value of definite property or services, an amendment, increasing the amount of such value, is permissible, because such an amendment cannot be considered as adding a new or independent claim but as merely making change in the scope of the claim upon which the county court passed. Dayton v. Dakin's Estate, 103 Mich. 65, 61 N. W. 349. See, also, Longwell v. Mierow (Wis.) 109 N. W. 943. The appellant moved for a nonsuit, and also for a directed verdict, on the ground that no express contract to pay for the alleged services had been shown; and, as the overruling of these motions present the same general question, they will be considered together. In such consideration, it becomes necessary to make some further statement of the evidence.

The evidence, showing that the claimant was received into the family of the deceased, and was called a son, and treated in all respects as a son from his fifth to his twentieth year, as well as during a number of months after his return from the army, in his twenty-fifth year, has already been quite fully stated. At this latter time, the deceased sold his farm and the claimant started out to make his own way. No change appears to have taken place in the feelings of the...