Wilkes v. Cornelius

• Decision Date: 01 December 1891
• Citation: 21 Or. 348,28 P. 135
• Parties: WILKES v. CORNELIUS.
• Court: Oregon Supreme Court

28 P. 135

21 Or. 348

WILKES v. CORNELIUS.

Supreme Court of Oregon

December 1, 1891

Appeal from circuit court, Washington county; FRANK J. TAYLOR Judge. Reversed.

This was a proceeding by Jabez Wilkes against T.R. Cornelius executor of the last will and testament of Annie Wilkes deceased, to secure the allowance of a claim against the deceased. The claim, having been disallowed by the executor was presented to the county court, where judgment was rendered in favor of the claimant. The executor appealed to the circuit court, where judgment was again rendered in favor of the claimant. From the latter judgment the executor appeals to this court.

Thos. H. Tongue, for appellant.

W.D. Hare and S.B. Huston, for respondent.

BEAN J.

This is an appeal from a judgment of the circuit court of Washington county, allowing the respondent the sum of $1,000 on a claim against the estate of Annie Wilkes, deceased, exhibited to and disallowed by the appellant as executor of her will. On June 30, 1888, respondent, who is a son of deceased, presented to the executor, for allowance, a claim in due form, properly verified, "for board, lodging, care, attendance, medical treatment, etc., done, furnished, and bestowed for and upon the deceased, during her lifetime, for six years last past, of the reasonable value of $15 per month and down to the date of her death," amounting in the aggregate to the sum of $1,080. This claim, being disallowed by the executor, was thereupon presented to the county court for allowance, as provided in section 1134, ^[1] Hill's Code. That court proceeded to hear and determine the matter, and allowed thereon the sum of $918.50, from which an appeal was taken to the circuit court. A trial before a jury in the latter court resulting in a verdict and judgment in favor of the claimant for the sum of $1,000, the executor appeals. The error complained of on this appeal is in the admission of evidence on behalf of the claimant tending to show that the board and lodging furnished by him to his mother was under an agreement on her part to pay him therefor. The claim, as presented to the executor, is based upon the rule that, where one person renders valuable services for another, the law implies a promise on the part of the party benefited to pay so much as such services are reasonably worth. This is the general rule. But, where the services are rendered by one near relative to another, an exception to the rule prevails, and no such promise is implied. In such case, before the party rendering services can claim compensation from the other, he must show an express agreement, or its equivalent, to pay for the same. Bennett v. Stephens, 8 Or. 444. Where such services consist in furnishing board and lodging to a parent by a child they are presumed to have been done gratuitously, however valuable they may have been, and such presumption can only be overcome by clear, direct, and positive proof of an understanding or agreement on the part of the parent to pay and of the child to receive compensation therefor. It is so usual and natural for children prompted by filial love as well as the instincts of common humanity to support and maintain their aged, infirm, or indigent parents, that the law implies no contract in such cases; but the presumption is that the services were rendered gratuitously, and this presumption can only be overcome by proof of an express agreement or understanding between the parties. The evidence to prove such contract must be clear, direct, and positive. "The very nature of the relation," says LOWRIE, J., "requires the contracts between parents and children to be proved by a kind of evidence that is very different from that which may be sufficient between strangers. It must be direct, positive, express, and unambiguous. The terms must be clearly defined, and all the acts necessary for its validity must have especial reference to it, and nothing else. Mehaffy v. Share, 2 Pen. & W. 361; Hack v. Stewart, 8 Pa.St. 213. The importance of this rule is very apparent, for it requires but a glance over the cases of this class to discover how sad has been the experience of the courts in family disputes growing out of exceptions which have been allowed, and how many and how distressing must have been the ruptures of the closest ties of kindred that have been produced and perpetuated by the encouragement thus given to try the experiment of exacting legal obligations out of the acts of parental or filial kindness." Poorman v. Kilgore, 26 Pa.St 365.

The claim of the respondent, as presented to the executor therefore, did 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, on its face showed that no liability existed. It is based, so far as appears upon 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...