225 Mass. 22 | Mass. | 1916
This is an appeal from a decree of the Probate Court upon the petition of Henry E. Butler, one of the administrators of the estate of Aaron Butler, deceased, to be allowed in his private capacity a claim against the estate of his intestate
The intestate suffered a paralytic shock in 1903; in 1904 one of his sons, who afterwards was co-administrator with the plaintiff, was appointed conservator by the Probate Court under the provisions of R. L. c. 145, §§ 40, 41,
The intestate from the time of his paralytic shock in 1903 until his death in 1914 was speechless and partly paralyzed; he was not confined to his bed and there was no evidence that he was not mentally sound during the entire period, although there was testimony that he was “slowed down” by the shock.
For many years he had conducted a variety store in a four-story brick building which he owned. In 1904 the conservator sold the entire stock of merchandise contained in the store to the petitioner, and thereafter until the death of the intestate collected rent for the use of the store from the petitioner. The intestate had no other personal property, and the income from the land and building thereon was not sufficient to pay the interest as it became due on a mortgage of the property, the water rates, taxes, repairs and insurance. There was at all times an equity of at least $3,000, but there was no other property or income immediately available for the support of the intestate. He had lived on the property for many years and was greatly attached to it. His family consisted of a wife and six children.
The petitioner was continuously employed in his business, was not always assisted by a clerk, and from time to time ran upstairs whenever he was called by his mother (who was unable to take all the care of her husband), for the purpose of assisting in moving and caring for his father. He provided a part of the provisions and other necessaries consumed by his parents, paid for part of other necessary expenses, and paid for the services of a housekeeper and nurse for six months before the death of his father. During the entire period covered by his claim he daily and nightly rendered necessary services which interfered with the conduct of his business. He testified “that he never spoke to any one, neither the father, mother or any other person about expecting pay for what he was doing for his father and that he had no talk with any person until after the death of the father about the support and services rendered by him to the father, and that he never kept any book account or written memorandum of any sort of the payments and services for which he sought to recover.”
During the introduction of testimony the petitioner was asked, and answered in the affirmative, the question, “At the last part of your father’s sickness, did your mother get sick also?” The respondent objected to the question and excepted to the reception of the answer. He now argues that the question was immaterial. Manifestly this is not so. The petitioner, not claiming under an express contract, was entitled to show all the circumstances and all facts which in themselves or inferentially tended to show the necessity that services be rendered, the probability that they were rendered by the petitioner, and the nature and value of them. Guild v. Guild, 15 Pick. 129. Kirchgassner v. Rodick, 170 Mass. 543. Johnson v. Kimball, 172 Mass. 398. Marple v. Morse, 180 Mass.,508. These circumstances necessarily and naturally included a view of the intimacies of the home and a consideration of the
Without objection or exception the petitioner was permitted to testify that he did not render the services as a gratuity to his father. He was then asked, “Explain what your intention was in furnishing those?” to which question he replied, “Of course I realized there was estate there.” There then ensued between the presiding judge and the counsel the following colloquy: The judge ■—“He can tell what the intent was.” Counsel for the respondent — “The issue is narrower than that; it is not what he thought, it is whether or not there was a contract; I think that is the issue here.” The judge — “Express contract?” Counsel for the respondent—- “Substantially so, your honor.” The judge — "Oh, no.” Counsel for the petitioner —• “I ask to have the question allowed.” Counsel for the respondent—“Your honor, please save my exception.” The judge— “Yes.”
The ruling was clearly right. The state of mind, that is, the purpose and intent of the petitioner at the time when the services were rendered to, and the money was expended on behalf of, the father, was material upon the issue whether such services and expenditures were made and received as a gift to the father, or whether both parties at the time the services were performed and the moneys were paid contemplated or intended pecuniary recompense. Nickerson v. Spindell, 164 Mass. 25, 27. The petitioner rightly was allowed to give his opinion as to the value of the support furnished and of the services rendered. Kendall v. May, 10 Allen, 59. Were it otherwise the respondent suffered no harm inasmuch as he expressly admits that the amount claimed was reasonable.
At the request of the respondent, the presiding judge ruled and instructed the jury “that the presumption in a case like this was that the services were rendered and expenses incurred gratuitously and that the burden was upon the petitioner to rebut that presumption by evidence.”
In response to the seventh request that he should rule that “under the circumstances disclosed by the evidence in this case, the petitioner cannot recover unless he shows that at the time he rendered the services and incurred the expenses for which he makes claim, it was understood by both himself and his father that he
This is, in effect, a contention that under the circumstances and facts of this case the petitioner must prove an agreement in fact between himself and his father, an express contract, that he should be paid for the services rendered and remunerated for the expenses incurred, and is, in substance, the sixth request for a ruling which was refused, an exception taken thereto, and which is not argued in the brief. This criticism also disregards and overlooks the fact that the crucial words in the request are “understood by both himself and his father” and are not the words “under an agreement” as formulated in the requests numbered 5 and 6. It is plain that the presiding judge in stating that there could be no recovery unless the petitioner “expected to be paid and rendered them on the credit of his father,” thought the words used were a forceful and emphatic statement of the principle of law contended for. It is equally clear that the respondent by the form of his request and the presiding judge by the words of his instruction intended to mark the distinction between an express agreement and an agreement implied in fact evidenced by circumstances, by the acts of the parties, and not by their verbal or written words. See Spencer v. Spencer, 181 Mass. 471; McKenna v. Twombly, 206 Mass. 62.
It is evident that the presiding judge construed the request to call for an instruction in substance that there could be no recovery unless under all the circumstances the father understood and the son understood at the time the services were rendered they were to be paid for. If the instructions as given did not bring out as
The facts and circumstances fully warranted the jury in finding that the father, by an unspoken assent to the benefits conferred on him, understood that his son expected to be paid for his services and disbursements, and that he received them with that understanding, and with an intent that there should be pecuniary recompense.
We shall consider the exceptions to the refusal of the presiding judge to receive a duly certified copy of the record of the Probate Court of the appointment of the conservator “as conclusive evidence that the intestate was during all the time involved in the suit incapable of making a contract of the kind in suit and as a conclusive bar to the claims of the petitioner,” in connection with the respondent’s exceptions to the refusal of the judge to rule in accordance with the requests numbered 2, 3 and 8.
The request to rule that “the settlement of the conservator’s account. . . with the full knowledge and consent of the petitioner is a complete bar against the present claim” was properly refused, and is not argued in the respondent’s brief.
We have considered all the exceptions and find no reversible error.
Exceptions overruled.
The case was submitted on briefs.
The issues were tried before Brown, J. The first issue was as follows: “1. Has the petitioner a valid claim against the estate of Aaron Butler for fifteen hundred and sixty dollars ($1,560.00) as specified in his petition?” The second issue was as follows: “2. If the first issue is answered in the negative, has the petitioner a valid claim against said estate in any amount? If so, in what amount?” The jury answered the first question in the affirmative, rendering the second immaterial. The respondent alleged exceptions, raising the questions that are described in the opinion.
That statute has been amended and supplemented by the following statutes: Sts. 1903, c. 96; 1905, c. 127; 1907, c. 169, § 3; 1908, cc. 116, 505; 1909, c. 256; 1910, c. 95; 1911, c. 206; 1915, c. 23; c. 151, § 6.
These requests were as follows:
“2. It appearing that Aaron Butler, the father of both parties in this case, was under conservatorship during all the time within which the petitioner rendered the alleged services and was to the expense for which he seeks to recover in this proceeding, in order to recover a verdict, the petitioner must prove that the conservator refused to properly support said Aaron Butler and devote the proceeds of his property to his support and that after such refusal, the petitioner rendered the services and incurred the expense for which he seeks to recover.
“3. In order to recover in this case, the burden is upon the petitioner of proving: First, that the conservator of Aaron Butler refused properly to support him. Second: That the said Aaron Butler was actually in need of the services rendered and the disbursements made by the petitioner. Third: That after such refusal, the petitioner rendered the services for which he sues and that he has demanded payment from the conservator and such payment has been refused.”
“8. It appearing from the undisputed evidence that Aaron Butler was under a conservatorship during all the time involved in this controversy, he is conclusively presumed to be incapable of making a contract.”
The intestate died in 1914, so that the services were rendered before the passage of this statute.