White v. Almy.

Decision Date09 March 1912
Citation34 R.I. 29,82 A. 397
PartiesWHITE v. ALMY.
CourtRhode Island Supreme Court

Exceptions from Superior Court, Providence and Bristol Counties; Christopher M. Lee, Judge.

Action by Hunter C. White against Lydia

F. Almy, administratrix. Verdict for plaintiff, and defendant excepts. Exceptions overruled, and case remitted for judgment upon verdict.

Irving Champlin and James Harris, for plaintiff.

Lewis A. Waterman and Herbert Almy, for defendant.

PARKHURST, J. This is an action on the case to recover the amount of the plaintiff's claim for the board of Lydia Kelton, the defendant's intestate, and certain sums of money paid by the plaintiff for said intestate. The following is a copy of the claim filed in the probate court of Burrillville:

Burrillville, R. I., Dec. 20, 1909. Estate of Lydia Kelton to Hunter C. White, Dr.

To board of Lydia Kelton from March 16, 1903, to September 7, 1908, 286 weeks, @ $5.00 per week

$1,430 00

To board of Lydia Kelton from September 7, 1908, to May 17, 1909, 36 weeks @ $7.50 per week

270 00

To payment of Dr. Bruce, Medical attendance

4 00

To payment for nursing

17 00

To payment for minister attending funeral

10 00

$1,731 00

This claim having been disallowed by the administratrix, this suit was duly prosecuted thereon, within the time prescribed by law. The defendant pleaded the general issue and the statute of limitations. There was no evidence offered in support of the latter plea. The case was tried upon the plea of the general issue, in the superior court, before a jury, on the 2d and 3d days of February, 1911. The plaintiff recovered a verdict for $1,224.19.

Within seven days after the rendition of said verdict, the defendant made a motion for a new trial on the following grounds: "(1) That said verdict is against the law. (2) That said verdict is against the evidence. (3) That said verdict is grossly excessive. (4) That said verdict is against the weight of the evidence. (5) Because of evidence newly discovered since the trial of said case." After the denial of said motion for a new trial, the defendant filed a bill of exceptions, which, after amendment, was allowed in part; and the case is now before this court upon said bill of exceptions as allowed.

It appears in evidence that Lydia Kelton was the mother of Mrs. White, the plaintiff's wife, and was also the mother of Mrs. Almy, the defendant administratrix, and of one son, Nahum A. Kelton; that Lydia Kelton, being a widow since 1889, had at times lived with Mrs. White, and at times with Mrs. Almy, and at other times (in the summer) in a house at Riverside, R. I.; that in the summer of 1902 she was visiting her daughter Mrs. White at her home on the farm in Burrillville, and while there fell and injured her hip, whereby she became partly disabled, and was unable to walk thereafter without the use of a crutch. In the fall of 1902, upon the approach of cold weather, it became necessary for Mrs. Kelton to have an abode other than at said farm, because the house was not properly heated for cold weather, and could not be made suitably comfortable for the care of Mrs. Kelton; that Mr. and Mrs. White did not live at the farm in the winter of 1902-03, they were taking their meals out, and had no room for Mrs. Kelton where they lived in the city. In view of these conditions, application was made to Mrs. Almy to allow Mrs. Kelton to live with her; but, as testified by Mr. Almy, it was impossible for them to have Mrs. Kelton at his house, partly on account of the ill health of his wife, and partly because they had no coal to heat their house, the winter of 1902-03 being the winter of the coal strike. Her son, Nahum A. Kelton, and his wife, lived in a tenement of small rooms heated by stoves, and arrangement was finally made for Mrs. Kelton to go there, where she stayed until they were unable to keep her there any longer. During her stay at her son's house, Mrs. Kelton frequently requested Mrs. White to take her to the farm at Burrillville, and Mrs. White assured her that she would do so just as soon as it was warm enough to be safe to take her up there. Mrs. White communicated her mother's request to the plaintiff, who consented that his mother-in-law should come to his house to live; and finally on March 16, 1903, in accordance with her own desire and request Mrs. Kelton went to the house of her daughter and son-in-law to live, and remained there till her death, May 17, 1909. It further appeared in evidence that during all this time Mrs. Kelton was well treated and cared for, had her meals with the family, or in her own room when necessary, was furnished with the best of food, and with such things as she asked for, other than such as were provided for the family; that she was pleased with what she received, and repeatedly said to the plaintiff, in the presence of others, "You are going to get paid for all these nice things you are doing for me after I am gone," or words to that effect, as testified to by several witnesses, one being her daughter Mrs. White, one her grandson, the present plaintiff, and one a Mrs. Palmer, who visited at the Whites' house frequently and for considerable periods from 1906 to 1909. It also appears that in March, 1907, when an addition was built to the house, a balcony on the second floor conveniently accessible to Mrs. Kelton's room was glazed to make a sun parlor for Mrs. Kelton's use, and a steam radiator placed therein to warm the same when necessary, and that she constantly used the sun parlor thereafter as long as she was able.

It is to be noted that the claim made by the plaintiff, upon which suit is brought, is simply for board. No claim is made for special care or nursing, on the part of the plaintiff or his wife, or for money expended for luxuries, or for special steam beat, or otherwise (except for the three final items of the claim, which are not disputed); and the only proper bearing of such testimony on behalf of the plaintiff, as relates to such special care or nursing or expenditure, is such as it may have in the minds of the jury in determining whether the amount claimed for board, in view of all the testimony as to the kind and quality of board furnished, was reasonable, and whether, under all such circumstances as are shown to have contributed so much to the comfort, welfare, and happines of Mrs. Kelton during her last years, it was reasonable to believe that, in expressing her gratitude and satisfaction, she understood and intended that she or her estate should pay a reasonable sum for what her son-in-law was doing for her. That he expected her to pay such reasonable sum can now be inferred only from her expressions above quoted, and from the fact that he duly filed his claim and brought his suit thereon; since, owing to his death before the case was tried, his testimony became unavailable. Mr. Almy testifies that, about two weeks after Mrs. Kelton died, the plaintiff told him he had no claim, and further testifies that Mr. White did not file his claim until after a contest in the probate court, as to whether Mrs. White or Mrs. Almy should be appointed administratrix, which resulted in the appointment of Mrs. Almy, the defendant; and thereupon the defendant argues that there is evidence to show that Mr. White did not, during the lifetime of Mrs. Kelton, have any reasonable expectation of being compensated, or any intention of making any such claim, and that the making thereof was an afterthought.

The defendant contends that under the evidence the court below erred in refusing to direct a verdict for the defendant (exception 29), and, having so refused, that it erred in denying the motion for a new trial (exceptions 1-7), because there was no evidence upon which the case should have been submitted to the jury, or upon which the verdict of the jury can be supported. In support of these exceptions the defendant argues that "the claim as filed in the office of the clerk of the probate court of Burrillville does not show a subsisting liability in favor of the claimant and against the decedent, but, when taken in connection with the relationship of the claimant and decedent, showed on its face that no liability existed. It is based, so far as appears on its face, upon the implied promise the law infers from the rendition of valuable services by one person for another, and as between strangers would have shown a subsisting liability; but no such liability is implied between parent and child. * * * The presumption being that such services are gratuitous, there should have been set out, in the claim filed, either an express promise to pay for such services, or circumstances affording ground for a reasonable expectation on the part of the plaintiff that compensation was to be made. 'It is the claim as presented which goes before the commissioners or the court. No provision is made for the determination of any question not embraced in the claim as originally presented.' Anderson v. Williams, 26 R. I. at page 67, 58 Atl. at page 252. The claim as filed in the probate court sets out a claim for board for a definite number of weeks at a definite sum per week, amounting to a definite sum, and contains no statement that any other claim would be made. The plaintiff, when a bill of particulars was demanded, filed as such bill a certified copy of the claim filed in the probate court. The declaration contains no count for so much as such services are reasonably worth, but apparently relies upon a promise, express or implied, to pay the claim as presented. It is respectfully submitted that there is no evidence to support such promise."

We are unable to agree with these contentions. To do so would be to hold that when a claimant, under our statutes, files his claim against the estate of a deceased person, he must set forth the nature of the evidence upon which he expects to support such claim. The statute (Gen. Laws 1909, c. 314, § 3) simply provides that claimants "shall file...

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13 cases
  • Traversa v. Smith, 79-308-A
    • United States
    • Rhode Island Supreme Court
    • 9 Diciembre 1981
    ...v. Mowry, 157 A. 71, 72, (R.I. 1931); Chapman v. Industrial Trust Co., 43 R.I. 544, 549, 113 A. 867, 869 (1921); White v. Almy, 34 R.I. 29, 39, 82 A. 397, 402 (1912). Here, the trial justice, sitting without a jury, arrived at an award well supported by the record, and his findings of fact ......
  • Wilson v. Else
    • United States
    • Iowa Supreme Court
    • 15 Noviembre 1927
    ...claimant may attempt to support his claim is properly left to be revealed in case of a contest at the time of a trial. See White v. Almy, 34 R. I. 29, 82 A. 397. It may also be kept in mind that no petition or formal pleading is required in filing a claim in probate. Harrison v. Harrison, E......
  • Mann v. McDermott
    • United States
    • Rhode Island Supreme Court
    • 9 Junio 1950
    ...complainants cite among other authorities Fuller v. Mowry, 18 R.I. 424, 28 A. 606; Hobin v. Hobin, 33 R.I. 249, 80 A. 595; White v. Almy, 34 R.I. 29, 82 A. 397, and Mowry v. Dean, 51 R.I. 156, 152 A. 736. All these cases are clearly distinguishable from the instant one. Hobin v. Hobin, supr......
  • Wilson v. Else
    • United States
    • Iowa Supreme Court
    • 15 Noviembre 1927
    ... ... support his claim is properly left to be revealed in case of ... a contest at the time of a trial. See White v. Almy, ... 34 R.I. 29 (82 A. 397). It may also be kept in mind that no ... petition or formal pleading is required in filing a claim in ... ...
  • Request a trial to view additional results

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