Crampton v. Kirfel

157 N.W. 1057 | S.D. | 1916

WHITINiG, J.

In the course oí the administration of the estate of one Henry Kirfel appellant filed a claim, against said estate. This -claim was, under the provisions of section 185, P-ro'b. Code, referred to a referee. Upon- the hearing -before- s-uch referee the present respondent -objected to- die allowance of the account, but the referee -reported in -favor -of the- claimant, this appellant. Such- report was -confirmed by the county court. From the judgment allowing the claim1 an appeal was taken, to- the circuit court, where a trial d-e novo- was had. The trial in the circuit court resulted in- a judgment against the claimant, from which judgment this appeal was -taken.

[1] When claimant offered testimony upon the trial in the circuit court, the following objection was- interposed:

“At this -time the -objector objects to- the introduction of any evidence in, support -o-f the -claim- of Rose Kirfel against the estate of Pl-en-ry Kirfel, deceased, for $4,574:87, for the reason that said -claim does not sho-w any subsisting liability against said estate, it appearing that this is a claim of a daughter for care and services-’rendered -to- her father, such care and services rendered by a chil-d to a parent being presumed to be gratuitio-us, and there being no implied contract to -pay for same, and for the further reason there is no -express contract on the .paid of decedent to pay for such -care and services alleged- in said claim.”

The main question, -presented to this court is the correctness of -the ruling of the trial -court sustaining such -objection. The Claim -presented1 was upon -the regular blanks- furnished -b-y the county court for such purpose, and set forth that:

“The undersigned -creditor of the ©aid deceased presents her claim against -the estate o-f said deceased, 'with- the necessary vouchers, to said Anna Kirfel, administratrix, for approval as follows, towvit: Estate -of Henry Kirfel, Deceased, to- Rose Kirfel, Dr.”

Then follow several items of taxes paid, being itemized at a -certain amount for -each year from the year 1903 down, to- and including the year 1913, and several items- of charges for maintaining a home for deceased and for moneys paid for house rent. Following such itemized statement was an affidavit of claimant as follows:

“State of South Dakota, County of Davidson — ss.:

“Rose Kirfel, claimant, within named, being first duly sworn, says that the amount of the within and annexed claim, to-wit. the sum of $4,574.87, is justly due to said claimant, that no payment has been made thereon which are not credited, and that .there are no offsets to the same, to the knowledge' of affiant.

“Rose Kirfel.

“Subscribed and sworn to before me this 8th day of January, 1914.

“E. A. Loonier, Notary Public.”

It is apparent that the grounds interposed upon the objection to the receipt of evidence do not appear upon ¡the face of the claim filed, inasmuch' as it does not appear thereby that there was any relationship between deceased and the claimant, but the files herein disclose the fact the claimant was the daughter of deceased, and that the claim, outside of the item for taxes paid, is for the care and support of the deceased, and respondent contends that the court rightfully excluded the evidence because it had -before it the facts -shown -by such files. There is- no merit -in such contention. The same files -disclose, not only the relation'ship of claimant to the deceased, but further disclose that claimant based her claim upon an alleged express agreement entered into prior to the furnishing of the support and the payment of' the taxes-. Under such- agreement, iin consideration of payment of the taxes and furnishing the support, deceased convenant-ed to convey to claimant a quarter section of land, and he died without making such conveyance, although -claimant had fulfilled her part of the agreement. -Certainly the trial court could not rightfully take notice of some of the facts shown by the- -records in the cause and ignore the other facts shown thereby. Prom all the files it was apparent -that claimant was resting her claim on an express -contract. B-ut, if -the -claim- was sufficient on its- face, the-relationship of the' parties thereto and1 nature of the contract became matters- to be established by the evidence.

[2] Respondent -contends that -the claim was not sufficient on its- face to warrant the allowance thereof. While there are-certain, statutory l'eqiuiskes.to^ibe 'complied with ‘in. filMg'a-daim, it i,-hot' contemplated’ that d claim'filed''heé'ct1 be’ set TbrEh-"with the 'particulaiity 'of" ;á ’ fotmMrfcodtoíaiSÉ''”iñ','’á'’>cotirt" ‘oi*'récordLThe ^tafute^does. liQ-t con.terqplats...lThat if, £jjaJij,be necessary to employ .one .learned in. the law ,to -preppro-a-' el’aim>-’to'--present--to1 'an ad-luinistraton or-executor. -If' fioih, "stich 'claim fill'd" tide''administrator or executor is fairly advised as to the claim arid'the nature thereof/ and "the ,claim is sufficient in its . conten té1',' to ¡.stíuicf' as a bar to another ciato for .the same • indebtedness, it-is--sufficient. This claim meets -such requirements.- 1 ■

" Much is. said in the "briefs in relation to* the sta-tuté'of limitations. No'objection 'was made "upon' the * ground' that the claim or any part thereof appears to have be(en'.b.ap;,e)d,.by The.^jatute, and in fact the major portion of 'such claim.does not.,appear to be barred. We are therefore not called' upon to . pass upon the question of whether or not it must .appear upon the face of the claim as filed that the same is not' 'barred by such statute.

Much said by respondent in her brief woiild he quite pertinent upon the question of the justness of appellant’s claim, but such discussion has no bearing upon the,. question' now before us, which if' simply' whether or not the ruling above referred to was correct.

The judgment appealed 'from is reversed.