Traurig v. Spear

• Decision Date: 08 April 1958
• Docket Number: No. 57-155,57-155
• Citation: 102 So.2d 165
• Parties: Dorothy V. TRAURIG, a single person, Appellant, v. Simeon SPEAR, as executor of the estate of Abraham Bloom, deceased, Appellee.
• Court: Florida District Court of Appeals

Page 165

102 So.2d 165

Dorothy V. TRAURIG, a single person, Appellant, v. Simeon SPEAR, as executor of the estate of Abraham Bloom, deceased, Appellee.

No. 57-155.

District Court of Appeal of Florida, Third District.

April 8, 1958.

Rehearing Denied May 5, 1958.

Redfearn, Ferrell & Simon, Miami, for appellant.

Sibley, Grusmark, Barkdull & King, Miami Beach, for appellee.

CARROLL, CHAS., Chief Judge.

Appellant brought an action in the Circuit Court of Dade County against the executor of the estate of the deceased Abraham Bloom. On the trial a verdict was directed for the defendant at the close of the plaintiff's case. There was involved an alleged contract between the plaintiff and Bloom, for him to make provision for plaintiff in a will, to compensate for services rendered.

The question to be determined on this appeal is whether the evidence, viewed in the light most favorable to the plaintiff, was sufficient to establish existence of the contract.

The appellant Dorothy V. Traurig alleged that in the fall of 1937, while she was living in New York City, Abraham Bloom asked her to come to Miami Beach and operate an apartment hotel which he owned.

In paragraph two of her complaint, the plaintiff alleged the contract as follows:

'A short time prior to the month of October 1937, Abraham Bloom, the decedent, requested of the plaintiff that if she would leave her home in New York and come to Miami Beach and perform services requested by him from time to time that she would be paid for said services when he died, by a provision in his will to that effect. The plaintiff relied on such promise, left her home in New York and came to Miami Beach and performed the services requested by Abraham Bloom, from time to time, from October 1937 to the date of the sudden death of Abraham Bloom on January 8, 1956. Plaintiff has never been paid for said services and the said Abraham Bloom made no rpovision in his said will for the payment to the plaintiff for said services, as he promised plaintiff would be included in his will.'

The plaintiff further alleged that she was a niece of Bertha Bloom, the then wife of Abraham Bloom; that the Blooms resided in Miami Beach; that Mr. Bloom operated a men's wear store in Miami; that he was the owner of an apartment hotel on Miami Beach, which was completed in October of 1937; that the plaintiff moved to Florida from New York and managed and operated the apartment hotel for Abraham Bloom from October 1937 until October 1939; that the continued to perform services for the Blooms in connection with the apartment hotel and otherwise until the death of her aunt, Bertha Bloom, in 1943; and that certain additional services were performed by her for Mr. Bloom until he died in 1956. In her complaint the plaintiff placed a value of $18,000 on her services, and sought judgment in that amount.

The defendant executor answered, denying the allegations relating to the contract and the performance of services thereunder.

The record reveals that the plaintiff's mother moved from New York to Miami in October of 1939, and that plaintiff then moved out of the Bloom's apartment hotel and resoded thereafter with her mother.

The plaintiff alleged that no salary as such was paid to her for services in operating the hotel or for any other services performed for the deceased, and the record is silent as to whether her needs for support and maintenance during the period she managed the apartment hotel were supplied out of the monies received in that business.

Beginning in 1941 plaintiff accepted employment from the City of Miami Beach, and she worked thereafter in various capacities at the city hall.

Abraham Bloom's wife, Bertha Bloom, died in 1943. Several years later Abraham Bloom married one Ethel Mitchell, who became his widow upon his death in 1956. In his will Abraham Bloom made no provision for plaintiff, and left his property to his wife Ethel.

Cases such as this, which represent a claim that a decedent made a given contract to dispose of his estate at death in a different manner than he attempted to do by his will, have resulted in the formulation of a positive rule which must govern their determination. While such contracts are recognized as valid and enforceable (Exchange National Bank of Tampa v. Bryan, 122 Fla. 479, 165 So. 685, 686; First Atlantic National Bank v. Cobbett, Fla.1955, 82 So.2d 870, 871), the proof thereof must be clear, cogent and convincing, and the making of such oral contracts or agreements must be established by disinterested witnesses.

As said by the Supreme Court in this connection, in Simpson v. Ivey, Fla.1953, 67 So.2d 687, 689:

'Standing alone the will of John Canfield left his property to his wife, Mary Adams Canfield, in fee simple and without any strings or limitations attached to it.

'The burden of proof was upon the appellants and in order to overcome the will as written, executed and probated under an alleged oral contract, it was necessary that the appellants establish such oral contract by clear and convincing testimony. See Miller v. Carr, 137 Fla. 114, 188 So. 103; First National Bank & Trust Co. v. Falligant, 208 Ga. 479, 67 S.E.2d 473.'

The requirement for strong evidence and positive proof of such contracts has been a matter of unvarying insistence by the courts. Exchange National Bank of Tampa v. Bryan, supra; Miller v. Carr, 137 Fla. 114, 188 So. 103; Simpson v. Ivey, supra; First Atlantic National Bank v. Cobbett, supra; Alphin v. Alphin, 225 Ark. 122, 279 S.W.2d 822; Johnson v. Flatness, 70 Idaho 37, 211 P.2d 769; Wessel v. Eilenberger, 2 Ill.2d 522, 119 N.E.2d 207; Finn v. Finn's Adm'r, Ky.1951, 244 S.W.2d 435; Baesler v. Bell's Executrix, Ky.1957, 299 S.W.2d 605; Hanson v. Urner, 206 Md. 324, 111 A.2d 649; Ehmke v. Hill, 236 Minn. 60, 51 N.W.2d 811; In re Boyd's Estate, Miss. 1956, 87 So.2d 902; Thompson v. St. Louis Union Trust Co., 363 Mo. 667, 253 S.W.2d 116; Bealmear v. Beeson, Mo.App.1957, 303 S.W.2d 690; Shook v. Woodard, 129 Mont. 519, 290 P.2d 750; Drew v. Hawley, 164 Neb. 141, 82 N.W.2d 4; Robertson v. Hackensack Trust Co., 1 N.J. 304, 63 A.2d 515; Stafford v. Reed, 363 Pa. 405, 70 A.2d 345; Cochran v. Bise, 197 Va. 483, 90 S.E.2d 178; Silhavy v. Doane, 1957, 50 Wash.2d 110, 309 P.2d 1047; Lantz v. Reed, W.Va.1955, 89 S.E.2d 612.

The so-called 'Dead Man's Statute' (§ 90.05, Fla.Stat., F.S.A.) is consistent with that rule, as to the degree of proof required. The purpose of the statute is to prevent the surviving party or parties from having the benefit of his or their own testimony, where, by reason of the death of the adversary his representative is deprived of the decedent's version of the transaction or statement. Accordingly, by that statute the testimony of the claimant is stilled when his adversary's 'mouth is stopt with dust.'

This brings us to a consideration of the evidence which was presented on behalf of the plaintiff to establish the claimed contract. Two witnesses were produced who were in the presence of the parties when her move to Florida was discussed. Three other witnesses testified to subsequent declarations against interest by Bloom. The two witnesses who testified as to the negotiations between the parties were Benjamin Finkle, plaintiff's brother-in-law, and his wife Rae Finkle, who was her sister.

In 1937 the plaintiff and the Finkles were living together, at the home of the plaintiff's mother in New York. The Blooms were residing in Miami Beach, but had spent some vacation time in New York. Benjamin Finkle's version of the matter was as follows:

'Q. Did you have a conversation with Abraham Bloom at that time in the presence of Dorothy and Mrs. Bloom? A. I didn't have any conversation, but I was there when the conversation was held between Mr. and Mrs. Bloom and my mother-in-law, Dorothy, and my wife. The conversation was that they were building an apartment hotel in Miami and weren't able to have anybody take care of it, and they asked whether Dorothy wouldn't come down and take care of the hotel and run it for them, and if she ran it for them, they would repay her in their will.

'Q. What, if anything, did Dorothy say in regard to that conversation? A. Well, the first time Mr. and Mrs. Bloom were up to visit my mother-in-law on Sunday, she had a pretty good job, she said, and she wasn't sure whether she wanted to leave. So, she decided, and my mother-in-law decided they would give it a little thought. The following Sunday, Mr. and Mrs. Bloom came up to the house again and Dorothy had then decided she would come down and live with them and take care of their hotel, but what she had to do was give the people notice on her job that she was leaving.'

That witness also testified as to certain later declarations by Mr. Bloom to the general effect that plaintiff had done a lot of things for him, and that he was going to 'repay her well when he died.'

Mrs. Finkle, the plaintiff's sister, referring to the same occasion of which her husband had testified, stated as follows:

'Q. Did you have occasion to see Abraham Bloom in New York at your mother's home during the summer of 1937? A. Yes, I did.

'Q. Under what circumstances; what transpired? A. Mr. and Mrs. Bloom came up to the house while they were in New York, and they told us that they were building an apartment hotel in Miami Beach, and that they didn't think they could take care of the property themselves because they had a store in Miami, and since they liked Dorothy, and since she was single, they thought it would be a good idea for her to come down and live with them and take care of this apartment hotel for them, run it for them. They said if she would do that, they would give her anything she wants; they would treat her like a daughter, and that they would pay her well in their will when they died. She said she would consider it. She had a good job and she wasn't sure she wanted to leave it, and she would think about it.'

She also testified that, in...