Thompson's Estate, In re

• Decision Date: 12 November 1971
• Docket Number: No. 8725,8725
• Parties: In the Matter of the ESTATE of Meta THOMPSON, Deceased. Herman GETZLAFF, Petitioner and Respondent, v. Elsie JOHNSON, Respondent and Appellant, and Hubert Getzlaff et al., Respondents. Civ.
• Court: North Dakota Supreme Court

Page 578

191 N.W.2d 578

In the Matter of the ESTATE of Meta THOMPSON, Deceased.

Herman GETZLAFF, Petitioner and Respondent, v. Elsie JOHNSON, Respondent and Appellant, and Hubert Getzlaff et al., Respondents.

Civ. No. 8725.

Supreme Court of North Dakota.

Nov. 12, 1971.

Syllabus by the Court

1. Although the usual presumption is that services rendered by a child to his parent are gratuitous in the absence of an express contract therefor, when the circumstances are exceptional and the character of the services rendered peculiar, a contract to pay for such services may be implied.

2. The services rendered by the daughter to the mother in the instant case are held to be not so exceptional or of such a peculiar character as to overcome the presumption that the services were gratuitously rendered.

Ella Van Berkom, Minot, for respondent and appellant.

William A. Neumann, Bottineau, for petitioner and respondent.

ERICKSTAD, Judge.

Elsie Johnson, who is the daughter and one of the heirs of Meta Thompson, appeals to this court from the order of the district court of Bottineau County, dated November 13, 1970, which affirmed the order of the Bottineau County Court disallowing Mrs. Johnson's claim in her mother's estate. Trial de novo is demanded.

The gist of the trial court's decision is that the evidence submitted does not establish the existence of an express or an implied contract to pay for the services which Mrs. Johnson performed for her mother during the last six years of her life.

Mrs. Johnson contends that she is entitled to recover from her mother's estate $30 per month or a total of $2160 for services rendered her mother during the last seventy-two months of her life. The trial court found, and we do not believe that it is seriously disputed on appeal, that Mrs. Johnson rendered substantial services to her infirm and aged mother over the last six years of her life. The court denied her claim, however, for the reason that it did not believe that she had sustained her burden of proving that the services were not gratuitous.

As the facts are not in dispute, we shall accept them as stated by Mrs. Johnson in her brief.

Meta Thompson died on January 25, 1969, at the age of 87 leaving four living children, to wit: three sons, Herman, Walter, and Hubert Getzlaff, and one daughter, Elsie Johnson, the appellant. Mr. Getzlaff, the father of the four children, died in 1932. An unmarried son, Henry Getzlaff, died in 1958, when Meta was 78. Meta inherited a quarter of land and $3354.14 from her son Henry at his death. At that time, although she had previously been receiving public welfare, she was taken off the welfare rolls and began living in a small house in Willow City, which was owned by her son Hubert.

In 1951 she married a Mr. Thompson, who died in the year 1954. Prior to her marriage to Mr. Thompson, she lived with her son Henry on his farm. Commencing in 1953, her daughter, Elsie, began to help her by hauling water, cleaning her home, and carrying coal.

After the death of her son Henry in 1958, she became more dependent upon Elsie.

Because it was thought that Mrs. Thompson could not care for herself during the winter, it became necessary to find a place for her to stay during the winter, and these arrangements fell upon Elsie to make. Elsie testified that she traveled 5886 miles over the last years of her mother's life looking for winter homes for her to live in. Each fall Elsie closed the home in Willow City and prepared it for the winter. In the spring she cleaned it preparatory to opening it again for her mother to live in during the summer. This necessitated at times painting, washing of dishes, preparation of bedroom, securement of food, water and fuel.

Elsie testified that she made three or four trips per day from her home in Willow City to her mother's home to be certain that she had the things she needed to be comfortable. Elsie did her mother's laundry, mending, and ironing at her own home, and when necessary she tended the coal furnace for her mother.

In 1965 Elsie arranged for a loan to be made to her mother to modernize the home in Willow City. She supervised the work and had it completed by March 1965. This project provided a half-bath on the same floor as her mother's bedroom and living quarters and relieved Elsie from the daily chore of emptying the 'slop pail'.

Until the last year of her mother's life, Elsie acted under a power of attorney, managing the land and her mother's money without receiving any remuneration for this service.

During 1968 Herman Getzlaff, one of Mrs. Thompson's sons, secured a power of attorney from his mother, and at about that time Elsie was relieved of the management of her mother's affairs.

On December 3, 1968, Mrs. Thompson executed a new will, which left to Elsie $15 and the residue to the other children. By a previous will she was to have shared equally with her brothers. It is the December 3, 1968, will which is now being probated. Elsie contested the admission of that will to probate at the time of the hearing on the admission of the will to probate, but has not appealed from the order admitting the will to probate. Accordingly, any issue involving the propriety of admitting the will to probate is not before us at this time.

When Mrs. Thompson resided in the home of one of her sons for two and a half months, he was paid for her care. This son asserts that he and others did things for the mother for which they were not paid, but these things are not enumerated.

Elsie summarizes perennial duties performed for her mother as follows:

1. Washing and fixing her hair;

2. Taking care of her feet (toenails, corns, etc.);

3. Providing her annual birthday party, replete with cake, decorations, food, and guests;

4. Taking her to the doctor;

5. Soothing ruffled feelings of the landlady and her mother and when feelings could no longer be soothed, finding her another place to live;

6. Driving from home to home in an effort to find a place for her mother to live each fall and in between when required.

In support of her contention that she has overcome the presumption that services performed by a child for his parent are presumed to be gratuitous, Mrs. Johnson refers us to a quotation from bergerson v. Mattern, 41 N.D. 404, 170 N.W. 877 (1918), which reads:

'Although the usual presumption is that services, rendered by a child to its parent, are gratuitous, in the absence of an express contract therefor, nevertheless, where the circumstances are exceptional and the character of the services rendered peculiar, a contract may be implied to pay for such services.'

In Bergerson this court in 1918 found from the facts therein existing an implied contract, but note the great difference in the type of services rendered in Bergerson from the type of services rendered in the instant case.

A quotation from Bergerson relative to the facts reads:

'* * * The mother was paralyzed, practically helpless, did not respond to nature's calls, and needed the care and attention of an infant. She first came to live with her daughter in the year 1908; she remained there for some 2 years, and then went to South Dakota for some 9 months on a visit, thereafter returning to the home of the plaintiff in 1911, where she stayed until her death. On July 25, 1913, she became paralyzed, and for some two weeks until September 5, 1913, a nurse was secured for her. Thereafter, and until her death, she received the sole care and attention of her daughter.'

In characterizing the type of service rendered, Judge Bronson, in Bergerson, speaking for the majority, said:

'The record amply discloses that the services performed were not only devoted and filial, but also burdensome, menial, and loathsome. The character of such services rendered showed high and efficient nursing.'

Judge Robinson, specially concurring with the majority, said that the plaintiff 'furnished her aged mother board, lodging, nursing and the best of care, lifted her from the bed to a chair, and from the chair to the bed, fed her like an infant, furnished her with clean diapers.' In characterizing those services he said that, 'The services rendered by the plaintiff were menial, tiresome, sickening, loathsome so that a regular nurse would have charged from $15 to $25 a day.' Bergerson v. Mattern, Supra, 170 N.W. 877, 878.

In pointing up the distinction between the facts in Bergerson, where the court found that the evidence had overcome the presumption of gratuity, from the facts in the instant case, the respondents refer us to Brady v. Brady's Estate, 50 N.D. 114, 194 N.W. 938, a decision rendered by this court in 1923.

In Brady the plaintiff daughter lived with her mother, the decedent, in a rooming house in the city of Bismarck from 1908 until the mother's death in 1921.

In that case the court said:

'The evidence shows that the rooming house was operated by the plaintiff and the decedent; that the work was done by both...