101 Mo. App. 676 | Mo. Ct. App. | 1903
-The contest in this case is over a demand presented by respondent Margaret E. Allen against the estate of her deceased father-in-law, David Allen, for services rendered to said deceased in household work and caring for himself and his wife through eight years immediately preceding his death. David Allen was a farmer who lived in- Shelby county, Missouri. He had eight children, one of whom was James Allen, the husband of the respondent. In 1892, this son James resided at Leonard, where he was engaged in the mercantile business. During the fall of that' year he married his wife, Margaret, and at the request of his father, as the testimony shows, disposed of his stock of goods and went to live with his parents on their homestead. At that time only two children of David Allen were living with him; his son Tom, who continued to reside with his parents about four years after James and his wife went to reside with them, and a daughter who married a month after that event. Both David Allen and his wife were in poor health and part of the time were unable to take care of themselves and totally disabled from attending to household affairs.
The testimony is that James and Margaret Allen were induced to remain with and care for the old people, largely through sympathy and affection, hut on the promise, too, that the homestead and eighty acres of land should he given to them. Prom 1892, when they went to the farm, until the death of David Allen, they continued to reside there and during that period the respondent did the cooking, general washing, ironing, sewing and house-cleaning for the family. She likewise gave personal attention to her mother-in-law when she was helpless, as was usually the case; dressed her, combed her hair and waited on her like she was a child. Besides these duties, she rinsed the bandages used to wrap the sores on her father-in-law and washed his underwear, which became filthy from the discharges. She also made the garden and raised chickens for the family’s use. James Allen cultivated the farm as a common renter, paying his father one-third of the crop for the rent. There is evidence to prove that the contract between them in regard to table supplies was that David Allen was to furnish everything, but that after the first two years James furnished one-half or more of the provisions and he also furnished part of the teams and farming implements. Margaret Allen had three children of her own to look after besides taking care of her mother-in-law and doing the domestic work for all the members of the household, including Tom Allen, her brother-in-law, while he stayed with them.
The evidence as to the arduousness of respondent’s duties and the faithfulness with which she performed them is convincing and practically without contradiction. At one time she and her husband thought of leaving the place and establishing a home of their own and on that occasion David Allen asked one of his daughters, Mrs. Bowers, to come and stay with him and her mother. Mrs. Bowers refused to do so because the work was too hard; said she had tried it once before and could not stand it. That was her own testimony. Besides, she gave testimony in regard to respondent’s services as follows:
“She [respondent] had her [Mrs. David Allen] to wash and her hair to comb and when pa was not able to help her she changed her clothes alone. She was about the same as a child to change, but of course she was heavy and more trouble.' Of course she had the washing and ironing and everything of that kind to do. People afflicted make more washing and ironing than people who are not.
“Q. What do you know about Mrs. Lizzie Allen, the plaintiff', washing the bandages that were used by*681 your father on his varicose veins? A. Well, he used little squares, might say about that large (indicating) that he put salve on, that would stick to his limbs. He burned those. Outside of that he had cloths that he wrapped his limbs in — both of them — and of course sometimes it went through the wrapper that he wrapped his limbs in and those cloths were always to wash. I have been there when she washed them. He has come sometimes and stayed with me a week and I washed them. Outside of that his clothes were stained — his socks and underclothing. We made cloths about that large (indicating) square to use in the bed under his limbs and they were to wash.
“Q. And she washed those? A. Yes, sir.
‘“Q. Were those cloths and his underclothing offensive? A. At times they were. There were times that his limbs would heal over. I have dressed his limbs when he was sick and it would be fearful to dress them. I have done that when he had spells of fever before Lizzie was there. I never dressed.them after she was there. ’’
To induce this daughter to come and stay with him and his wife in case respondent left, David Allen offered to furnish everything for Mrs. Bowers’ family to live on, but she declined the offer. He also told her he was to furnish everything for Lizzie (respondent) and she was to do the work; further, that he intended to compensate her, but did not say to what extent. Mrs. Bowers’ testimony as to the character of the duties performed by the respondent and the diligence and fidelity with which she performed them, is corroborated by many witnesses and disputed by none.
In the face of such testimony appellant demurred to the evidence for the respondent and now assigns for error that the demurrer was overruled. The foregoing statement sufiiciently disposes of the assignment and we will discuss it no further.
It is becoming customary for counsel to ask courts
The court excluded the will of David Allen when it was offered in evidfenee by appellant, and this ruling is asserted to have been erroneous. The respondent was not named in the will nor does it contain anything which points to her. It contains the provision mentioned that if any child to whom the deceased had made a bequest should be allowed a claim against his estate the bequest of such child should be diminished by the amount of the allowance. Respondent was neither a child of David Allen nor was anything bequeathed to her; hence, she was neither by expression nor implication referred to in the will, which was incompetent as evidence to defeat her claim. The ease cited on this point by the appellant (Cowell v. Roberts, 79 Mo. 218) is one in which the will of the deceased was held competent as corroborative of the defense that the claimant, Susan Cowell, had occupied a position as a member of the decedent’s family; but this ruling was based on the fact that she was named and provided for in the will.
The deposition of O. M. Stuart was received in evidence, appellant insists improperly. In his deposition Stuart swore he was -acquainted with David Allen in his lifetime and heard Mm say he expected to pay Lizzie and Jim (the respondent and her husband) for the kindness they had shown him; said he expected to give Lizzie and Jim the home place and had told Jim to go ahead and fix up the barn and put out apple trees as he would have the home place. The argument is that tMs testimony was incompetent because it tends to prove a contract or intention to reward both the respondent and her husband, instead of her alone. The deceased, could not have rewarded both without rewarding the
It is right to state that not all the decedent’s children are opposed to respondent’s demand. '
Appellant excepted to an instruction the effect of which was that the 3my might infer a promise to pay plaintiff for her services from all the circumstances of the case and the nature of the services rendered, but that the burden was on the respondent to show the promise. It is undoubted law that a promise to pay for the services rendered need not be proven, in a case like this, by positive testimony, but may be found by the jury from circumstances and facts detailed by witnesses. An instruction of the kind criticised has been approved in various decisions. Hart v. Hart, 41 Mo. 446; Reando v. Misplay, 90 Mo. 251; Ramsey v. Hicks, 53 Mo. App. 190; Hayden v. Parsons, 70 Mo. App. 493.
The jury’s award of compensation to the respon