Wilson v. Else

Decision Date15 November 1927
Docket Number38214
Citation216 N.W. 33,204 Iowa 857
PartiesW. C. WILSON, Appellant, v. F. W. ELSE, Administrator, Appellee
CourtIowa Supreme Court

Appeal from Mahaska District Court.--H. F. WAGNER, Judge.

Claim in probate against an administrator of the estate of decedent. Cause tried to a jury, the trial resulting in a verdict for the claimant, who appeals.


Thomas J. Bray, for appellant.

C. Ver Ploeg and McCoy & McCoy, for appellee.

DE GRAFF, J. STEVENS, ALBERT, and MORLING, JJ., concur, EVANS C. J. (specially concurring). WAGNER, J., not participating.



This is an action in probate, to recover on a claim against the administrator of the estate of C. C. Mateer, deceased, for board, lodging, washing, ironing, mending of clothing, care and nursing, furnished to the decedent for a period of nearly twenty years. The defendant-administrator filed a motion for more specific statement, and especially with reference to the nature and terms of the agreement on which the claim is predicated. Claimant filed resistance to said motion, and the motion was overruled.

The reversible error is primarily based on the instructions given to the jury. The case, however, presents fact questions, to wit: whether or not the claimant and the decedent were members of the same family; whether the services claimant rendered the decedent were gratuitous; whether there was an express or implied contract for the payment of the services claimed to have been rendered; whether the decedent had paid for said services, and the value of same. No instructions were requested by the claimant.

Before we pass to the challenged instructions, the salient facts may be briefly stated. Claimant is the son-in-law of the decedent. The latter lived with claimant and his wife, daughter of decedent, from October 1, 1905, to the date of his death, August 4, 1925, except certain intervals of temporary absence. Claimant is a farmer. The wife of claimant performed the major part of the services claimed to have been rendered the decedent. It is contended by claimant that decedent did not pay him any money from 1905 to 1921, but it is admitted by claimant that subsequently decedent did pay claimant the sum of $ 2,077.25. No demand was ever made by claimant or his wife for payment, nor was any bill ever rendered to the decedent for services rendered. The physical condition of the decedent was reasonably good during the years he lived in claimant's home, sharing full and equal privileges in said home. Decedent was never bedfast until his last sickness, which was of a short duration. Further facts will be stated as seem necessary in the review of the court's instructions.

It is a well settled rule that all the instructions should be read and construed together, for the purpose of determining the correctness of any part of the charge to the jury.

1. Instruction I. This instruction is devoted to the issues of the case and it is said therein, in conformity to Section 11961, Code of 1924, that:

"All claims filed, and not expressly admitted in writing signed by the executor or administrator, with the approbation of the court, shall be considered as denied, without any pleading on behalf of the estate * * *."

The administrator, however, did deny, in answer, each and every allegation of the claim, and specifically pleaded the relationship of the parties, and that the decedent lived in claimant's home "as a member of his family," and that any services claimed were gratuitous. It is apparent that the court explicitly defined the issues, and limited the consideration of the evidence bearing on the issues. Fact questions were presented, and the statement of the issues made plain for the consideration of the jury. The controversy is plainly stated in the pleadings, and a court is privileged to use the same language in the statement of the issues. Crawford v. Nolan, 72 Iowa 673, 34 N.W. 754. If the pleadings are involved and prolix, then it is better practice for the trial court to condense the pleadings and make a statement thereof which will remove any doubt or confusion. German Ins. Co. of Freeport v. Chicago & N.W. R. Co., 128 Iowa 386, 104 N.W. 361; Stillman v. Chicago, R. I. & P. R. Co., 196 Iowa 612, 192 N.W. 860; Stephens v. Brill, 159 Iowa 620, 140 N.W. 809. The intent and content of Instruction I could not mislead the jury.

2. Instruction II. This instruction attempted a legal definition of the phrase "members of the same family," and stated, in substance, that if, at the time the claimed services were performed, the claimant and his wife and said decedent were members of the same family, the burden is upon the claimant to show by a preponderance of the evidence that the services rendered were not gratuitous. This instruction is in harmony with the declared legal rule of this state. Feltes v. Tobin, 187 Iowa 11, 171 N.W. 739. It was for the jury to decide whether the decedent was a member of the claimant's family. In re Estate of Bishop v. Pearson, 130 Iowa 250, 106 N.W. 637. The administrator pleaded that the services rendered were rendered gratuitously. This was in the nature of a special defense. Saddler v. Pickard, 142 Iowa 691, 121 N.W. 374. There is no error in the instant instruction.

3. Instruction IV. In this instruction the jury was told that, if the claimant and his wife and the decedent were not members of the same family, and the claimed services, including board and lodging, were furnished with the knowledge and consent of the decedent, then, in that event, there would be an implied contract that the said decedent was to pay the fair and reasonable value thereof. The principle stated is well recognized. Snyder v. Nixon, 188 Iowa 779, 176 N.W. 808.

4. Instruction V. Here the jury was instructed that, if it was found that plaintiff and his wife and the decedent were members of the same family, and if they further found from a preponderance of the evidence that there was an express contract or agreement by which the deceased was to pay, and the claimant was to receive pay, for the claimed services, including board and lodging, or if it was determined, from all the facts and circumstances, that the services were rendered with the expectation on the part of plaintiff to receive pay therefor, and with the expectation on the part of the deceased to pay therefor, then, in that event, the plaintiff was entitled to recover the fair and reasonable value of the said services. We find no fault in the language used.

A member of a family, rendering services to another member of the same family, cannot recover therefor "unless there is an express promise to pay for the services, or unless the showing made negatives the thought that they were gratuitous, or, that is, unless it is shown that they are rendered under such circumstances as makes it manifest that there was both an expectation of receiving remuneration and an intention of paying for the services." Snyder v. Nixon, supra. See, also, Scully v. Scully's Exr., 28 Iowa 548. In passing, it may be said that the evidence is quite conclusive that the decedent was a member of the claimant's family, within the legal meaning of that term.

5. Instruction VI. The gist of the criticism to this instruction is that the court erred in submitting, as a condition precedent to recovery, either "that there was an express contract or agreement between the claimant and the decedent * * * or such facts and circumstances must be shown by a preponderance of the evidence as will authorize the jury to find" that the services, including board and lodging, were furnished and rendered in the expectation on the part of the claimant of receiving pay therefor, and an expectation on the part of the decedent to pay therefor. The specific complaint is that there was no issue of an express contract in the case. It will be remembered that plaintiff alleged in his petition that, for a period of nearly twenty years, plaintiff furnished a home to decedent, which included his board, lodging, washing, etc., and that the fair and reasonable value of the said services for said time was in the aggregate sum of $ 9,480, and that, after credit is given for what has been paid, there remains due and unpaid from the estate of the decedent the sum of $ 7,480. True, the claimant did not allege whether he was relying upon an express or an implied contract. The defendant attempted, by his motion for a more specific statement, to secure an allegation whether or not there was any agreement between the parties for the claimed services, and to state whether the same was in writing or in parol, "and the terms of said agreement, if there was such an agreement." This motion was resisted, and the plaintiff was not required to file an amendment in conformity to said motion. In effect, the plaintiff did not, and further refused to, state whether he was basing his recovery on an express or an implied contract. Consequently, the claim filed is equally consistent with a recovery either upon an express contract or upon an implied agreement. There were no facts alleged upon which it could be determined whether the service was rendered with or without an express agreement. As said in Wise v. Outtrim, 139 Iowa 192, 117 N.W. 264:

"But it is hardly correct to say that the claim as originally filed is founded upon an implied contract. The statement is a mere skeleton account, stating no facts from which the court or jury could determine whether the services for which payment is demanded were rendered without any agreement as to the time of payment thereof, or under an express agreement providing for the payment at some future date."

The nature of the evidence upon which the claimant may attempt to support his claim is properly left to...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT