Bostwick v. Estate of Bostwick

71 Wis. 273 | Wis. | 1888

Taylor, J.

The only question for the determination of this court is whether the findings of fact are supported by the evidence. After reading the evidence in the case we have no hesitation in saying that the findings are not only supported by the evidence, but that every reasonable presumption arising upon the evidence sustains them.

As to the $555 claimed to have been loaned by the appellant to bis son, by a transfer of that amount, standing to the credit of the appellant in the Bank of Tomah, to the credit of his deceased son, the evidence very clearly shows that the whole sum so standing to the credit of the appellant in said bank, and which was transferred as above stated, was, in fact, the money of the deceased which had been theretofore received by the appellant upon sales made by him of property of the deceased, as his agent, and deposited in said bank to his personal credit; and that the transfer was made to the credit of the deceased because the money belonged to him, and not as a loan to him.

The claim for services has no substantial support by the evidence in the case. The claimant is the father of the deceased. On January 1,1881, the time he claims his services for which he has not been paid commenced, he was about seventy-seven years old, and uvas living in his sop’s family ■with his aged wife, eating at the same table, supplied with money to pay for his clothing, medical attendance, and other necessaries, by his son, no account being kept, either by the father or son, for services rendered or for money supplied to the father and mother for clothes, medical attendance, or other necessaries provided by the son, and no satisfactory evidence that there ever was any agreement on the part of the son to pay any wages for such services as the aged father was able to and 'did perform for him. It seems to us that a father and mother living in the family of a son, having all the necessary wants supplied by the son as members of his family, the father being of the age of seventy-seven years when he commenced so living, and living with him until he was about eighty-two years old, ought to make out a pretty clear case of an agreement on the part of the son to pay him wages for his services, when he seeks to charge the estate of such son with a claim for such services after his death. There certainly is no such clear evidence of a contract in this case -as should take the case out of the general rule as laid down by this as well as all other courts in cases of this kind. McGarvey v. Roods (Iowa), 35 N. W. Rep. 488; Byrnes v. Clark, 57 Wis. 13, 21; Tyler v. Burrington, 39 Wis. 376; Wells v. Perkins, 43 Wis. 160; Manseau v. Mueller, 45 Wis. 430; Pellage v. Pellage, 32 Wis. 136; Mountain v. Fisher, 22 Wis. 93; Leary v. Leary, 68 Wis. 662, 671; Geary v. Geary, 67 Wis. 248. Most of the cases cited are cases where the son or daughter claims for services rendered for the father, but the same rule applies where the father claims for services rendered for the son under similar circumstances. See Leary v. Leary, supra, and Harris v. Currier, 44 Vt. 468; Schouler, Dom. Rel. (3d ed.), sec. 270, p. 379.

See note to this case in 37 N. W. Bep. 405.— Bep.

All the evidence in the case shows that the deceased son was disposed to and did deal with his aged father and mother in a dutiful and kindly way, during his life-time; and at his death he made, considering his ability, at least, no niggardly provision for the support of his father during the remnant of his days.

We find nothing in the record to impeach the justice of the findings and judgment of the circuit court.

By the Court.— The judgment of the circuit court is affirmed.