Vonchina v. Turner's Estate

• Decision Date: 01 October 1957
• Citation: 154 Cal.App.2d 134,315 P.2d 723
• Parties: Edward R. VONCHINA, Plaintiff and Respondent, v. The ESTATE of Mabel L. TURNER, Deceased, her Executor and/or Administratrix-With-the-Will-Annexed Florence J. Swain, Defendants, Florence J. Swain, Administratrix-With-the-Will-Annexed of the Estate of Mabel L. Turner, Deceased, Appellant. Civ. 22264.
• Court: California Court of Appeals Court of Appeals

Page 723

315 P.2d 723

154 Cal.App.2d 134

Edward R. VONCHINA, Plaintiff and Respondent, v. The ESTATE of Mabel L. TURNER, Deceased, her Executor and/or Administratrix-With-the-Will-Annexed Florence J. Swain, Defendants, Florence J. Swain, Administratrix-With-the-Will-Annexed of the Estate of Mabel L. Turner, Deceased, Appellant.

Civ. 22264.

District Court of Appeal, Second District, Division 3, California.

Oct. 1, 1957.

Thomas A. Wood, Los Angeles, for appellant.

A. Brigham Rose, Los Angeles, for respondent.

VALLEE, Justice.

Action on a creditor's claim presented to the administratrix-with-the will-annexed of the estate of Mabel L. Turner, deceased, and rejected. The claim, in the amount of $5,265, is for alleged services as day and night watchman, caretaker, and gardener from December 1, 1950 to June 1, 1953 at an agreed wage of $40 a week; and for the purchase price of a sleeping cot. ¹

The court found: 1. About December 1, 1950 Mabel L. Turner engaged plaintiff to perform services as night watchman, caretaker, and gardener on the basis of an agreed wage of $40 a week. 2. In that capacity plaintiff rendered services to Mrs. Turner up to the time of her death. 3. During that time Mrs. Turner paid nothing to plaintiff. 4. In addition, Mrs. Turner requested plaintiff to disburse $25 in her behalf. 5. Mrs. Turner died May 11, 1953. 6. The claim was presented in due time and rejected. 7. No part of the claim has been paid. 8. The reasonable value of the work, labor, and services performed by plaintiff in behalf of Mrs. Turner is $1,950. 9. The cause of action is not barred by subdivision 1 of section 339 of the Code of Civil Procedure. Judgment was that plaintiff recover $1,950 from defendants with interest from May 11, 1953.

The assignments of error are: 1. Permitting plaintiff to testify over objection to matters and facts occurring before the death of the decedent. 2. Finding that no part of the claim is barred by subdivision 1 of section 339 of the Code of Civil Procedure. 3. Insufficiency of the evidence to sustain the findings.

Plaintiff, called in his own behalf, testified he was 79 years old; he is also known as 'Laguna'; he knew Mabel L. Turner in her lifetime; he first met her in 1950. He was then asked if he ever performed any services for her. Defendant objected on the ground plaintiff was not a competent witness to any matters that happened prior to the death of Mrs. Turner. The objection was overruled. Plaintiff then testified over repeated objections that beginning in 1950 and for about 3 1/2 years he did the housework and the garden work--everything--and that Mrs. Turner told him he was going to be paid.

Defendant, called in her own behalf, testified plaintiff did not do any cooking for Mrs. Turner. Plaintiff, called in rebuttal, over repeated objections, was permitted to testify he did some of the cooking because Mrs. Turner was not able to do it; he took care of her many hours at night and sometimes in the daytime; he took care of everything; Mrs. Turner had a beautiful lawn and he had 'to take care of the roses and lawn and everything else.'

It is hornbook law in this state that a party to an action against an administrator on a claim or demand against the estate of a deceased person cannot be a witness as to any matter or fact occurring before the death of such deceased person. Code Civ.Proc. § 1880(3). The statute is supported by sound public policy and was wisely adopted in the interests of justice. Norgard v. Estate of Norgard, 54 Cal.App.2d 82, 89, 128 P.2d 566. Where the voice of one against whose estate a claim or demand is made is silenced by death, the claimant should not be permitted to testify as to the facts of the transaction when suing to enforce a money demand against the estate. 'A claimant against an estate 'cannot testify at all 'as to any matter or fact occurring before the death of such deceased person,' whether incidental, preliminary, or otherwise.'' Warren v. Nair, 102 Cal.App.2d 298, 300, 227 P.2d 515, 516. The plaintiff is incompetent to testify in contradiction of another witness, and the statute applies as well to matters occurring without the presence of the decedent as to those in which she may have participated. Stuart v. Lord, 138 Cal. 672, 676-678, 72 P. 142.

It is patent that it was error to permit plaintiff to testify as to the matters and facts occurring before the death of Mrs. Turner.

The contention that the court erred in finding no part of the claim is barred by subdivision 1 of section 339 of the Code of Civil Procedure must be sustained. Mrs. Turner died May 11, 1953. The claim is for services from December 1, 1950 to June 1, 1953 and for reimbursement of $25 expended in purchasing a sleeping cot at Mrs. Turner's request. The action was filed February 15, 1954. An action on an obligation not founded on an instrument in writing, with exceptions not applicable here, must be commenced within two years after the cause of action shall have accrued. Code Civ.Proc. § 339(1). Section 708 of the Probate Code provides:

'No claim which is barred by the statute of limitations shall be allowed or approved by the executor or administrator, or by the judge. * * *'

Section 353 of the Code of Civil Procedure provides in part:

'If a person against whom an action may be brought dies before the expiration of the time limited for the commencement thereof, and the cause of action survive, an action may be commenced against his representatives, after the expiration of that time, and within one year after the issuing of letters testamentary or of administration.'

Section 353 extends the time within which to present a claim and bring an action in the event of rejection if the obligation is not barred at the death of the decedent. Wallace v. Gable, 209 Cal. 10, 13, 285 P. 309; Silva v. Superior Court, 83 Cal.App.2d 521, 527, 528-530, 189 P.2d 314. Section 535 does not apply to that part of a claim which is barred at te death of the decedent. Davis v. Hart, 123 Cal. 384, 388, 55 P. 1060; Hibernia Savings & Loan Society v. Herbert, 53 Cal. 375, 378. 'As a general rule, in the absence of a specific statute to the contrary, the intervening death of an obligor does not toll a general statute of limitations upon an accrued cause of action.' Berger v. O'Hearn, 41 Cal.2d 729, 731, 264 P.2d 10, 12.

A claim for services rendered should be rejected as to the barred part thereof. In re Estate of Steuer, 77 Cal.App. 584, 585-586, 247 P. 211; Friel v. Rawlings, 90 Cal.App. 220, 223, 265 P. 833. Etchas v. Orena, 127 Cal. 588, 60 P. 45, was a suit on a rejected claim for the reasonable value of services alleged to have been performed by the plaintiff for the decedent in her lifetime. It was held that on trial of the suit the evidence must be confined to proof of services rendered within two years prior to the death of the decedent; and neither the executor nor the judge had any right to allow any part of the claim which was barred by the statute of limitations.

The claim, on an agreed wage of $40 a week, is for $160 for the period December 1 to 31, 1950; for $2,080 for the period January 1 to December 31, 1951; for $2,080 for the period January 1 to December 31, 1952; for $920 for the period January 1 to June 1, 1953; and for $25, the purchase price of a sleeping cot. It appears from the findings that part of the award was for the alleged $25. The record does not show when the $25 was expended. It appears on the face of the claim as presented and sued on that all that part which became due for services performed prior to May 11, 1951 is barred by the statute. The cause of action alleged is on the claim as a whole. As noted, the court found that the cause of action is not barred; obviously it is in part. The court found that from December 1, 1950 to the death of Mrs. Turner plaintiff rendered services as night watchman, caretaker, and gardener; and found that the reasonable value of the work, labor, and services performed in her behalf is $1,950. Thus it appears that part of the $1,950 is for services performed prior to May 11, 1951.

Plaintiff's only answer to the...