*1 Virgil of the Estate A. Matter Steffes, Mary Plaintiff-Respondent, Deceased: Lou Brooks, Terry personal representative, Steffes, V.
Defendant-Appellant. Supreme Court Argued No. 77 - 171. December 3, 1979. April 8, 1980. Decided (Also reported 697.) in 290 N.W.2d *2 appellant by For the there were F. briefs J. Antoine Peterson, Antoine Chien, & Peterson of Prairie du argument by and oral F. J. Antoine. respondent McIntyre, a by there was
For brief argu- Kinney, Lancaster, Urban & Schrader of and oral by Thomas T. Schrader. ment ABRAHAMSON, question SHIRLEY S. J. The on appeal engaged plaintiff, is whether the who in an adult- deceased, may relationship with the from erous recover wages unpaid compensa- salary, estate other personal tion for rendered to the deceased with- two-year period preceding his death.1 Virgil July will Steffes died without a on 1976. gross $733,644.65. His estate was valued at Steffes personal repre- son, survived who is an heir estate, son, sentative and children of a deceased Mary plaintiff, Brooks, who are heirs. Lou filed against $29,200.00 claim the estate the amount of *3 personal during services rendered to the the deceased years (July 17, 1974-July 17, 1976). last two of his life pay litigation The estate refused to the claim and this en- judgment allowing trial sued. The court rendered the against claim in $14,600.00. the estate the amount of dispute plaintiff is no There that rendered services on for Steffes the farm and in his home and that she gave nursing during him excellent lengthy care his last guest illness. Steffes’ had son been a in his father’s home 893.01, Stats., provides: Sec. actions; objection commencing. “Civil as to time of Civil actions only prescribed can periods chap- commenced within the in this ter, except when, special cases, in pro- a different limitation is by objection vided But statute. the that the action not com- was only menced within by the time limited can be taken answer 802.06(2) motion to proper dismiss under s. in cases.” provides: 893.21(5), Stats., Sec. years. “893.21 Within . . . Any “(5) unpaid action to salary, recover wages or other com- pensation personal services, except professional fees services.” death, before his father’s and he testified that he had plaintiff, eaten meals cooked the that his father’s good condition, kept plaintiff home was in and that good took ill care of his father. personal appeals judg- son, as representative,
The grounds: (1) ment on that three the facts do not sustain findings plaintiff the trial court’s .rendered request knowledge services at with the compensation; expectation (2) deceased and with the any presumed gratuitous services rendered are to be plaintiff years because lived for more than six as a mem- requirement ber of Steffes’ household and that express promise pay there be an for such services was met; (3) plaintiff not that the cannot recover com- pensation for the work she in the house and farm, plaintiff on the because Steffes and the had en- gaged in sexual intercourse. judgment
We affirm the of the trial court.
I. dispute. Mary are facts Brooks, Lou plaintiff, Virgil Steffes, deceased, met while plaintiff working tavern, in a and soon thereaf- ter she moved to Steffes’ farm home where she resided until his death. Plaintiff and Steffes were each married persons. to other Plaintiff knew Steffes was a married man, and he continued to be married until his wife died in 1974. The had been married had two children. She continued to be married while she *4 house, initiating lived the deceased’s proceed- divorce ings after having Steffes’ death. Plaintiff admitted sex- Virgil ual year relations with Steffes until about a before Steffes’ death. Plaintiff and numerous witnesses testi- plaintiff fied that neither nor represented Steffes had Virgil her as Steffes. Mrs.
According- plaintiff’s undisputed to the testimony she performed following chores in and on the the house house, washing, farm: she cleaned did the cooking, ironing; helped fences; picked she fix farm she crop; corn ran she the combine and into loaded corn during 1974; a “semi” late she chased animals which es- caped pasture; from the from the end of October until May (1974-1975) silage; she loaded she aided the de- pouring feedlot; ceased concrete walls around the by aided remodeling “tearing the deceased in his home partitions” by out setting pouring concrete, forms, forms; pulling she wrote all the deceased’s checks (with one exceptions) or two under the deceased’s direc- two-year period tion over signing in question, his along initials; name with her pre- and she cleaned and pared machinery April for the 1975 farm sale. The amount by of work plaintiff may gauged by farming the size operation. July, In 1974, there were 80 head of approx- Charoláis cattle and imately registered Morgan horses on the farm. There also corn acres of on spring the farm in the 1975. nursing gave also described the care she began
Steffes. In the fall of his health to deterior- dizzy ate. He spells. suffered from headaches and March, hospitalized 1975 he was and tests revealed a brain tumor; surgery performed. stayed Plaintiff in a nights days chair beside Steffes’ bed for four while hospital. twenty-eight he was in the For consecutive days surgery, plaintiff after Steffes’ drove him to the hospital for cobalt treatments. Steffes’ condition con- during plaintiff’s tinued to worsen 1976 and care con- testimony relating tinued. Plaintiff’s to the care she gave during Steffes his illness was summarized estate’s counsel as follows: *5 surgery, Virgil “. . . In the summer 1975 after still pressure had so much headaches and had from tumor. eye. eye He his left I went blind in took him for tests got right and fall of ing a in he his in In the little weak side 1976. only . . 1975 there was horses left. . The remodel- completed April, in of the house was 1976.
slight Virgil weakening we we stroke Steffes when or was working were moved the house about three weeks before April me. in. We moved around 1st. He called leg He couldn’t use his it so weak and his was arm. We working were still Laudel Culver and there. Don Urban- Crubaugh, Daisy ek and Bill and we were all in the working evening Virgil up house and I and went place. the other He said did not know what was he wrong, legs I his weak and that. seemed Then exercised leg by working leg down, up his and his arm his and forth, trying strength keep back and arm. in it and his checkup I him took back to La Crosse and they x-rays x-rays took and the me doctor showed coming where Virgil’s leg tumor was back and I told him about says it, and that and he I exercise and so they put pills did and him that’s when on some and he every They keep had to have them four hours. were to pressure coming off where tumor was back. Vir- gil got kidney back, infection I took him and and gave pills. They him wanted use a catheter he he and bought said I urinal no. and sat him. If beside could, help for awhile he could when he had to himself got it then use and he he couldn’t use it. If he wet changed himself I his if clothes and he had an accident change night. bed, I would in the bed middle of the during June, March, This went on 1976. After he had a stroke that affected the whole one side him and so then in order him my to walk I would slide foot pick up way. under his He his foot and walk him that going hospital to the doctor during and the checkups. time. I took him for his I would lift him out my of the chair I and then would slide foot under his put my him, my put arm around arm around him get he lean would on me and we would to the car that way. thing hospital. Be the same at the If I had to park I place parking some away, out in the lot too far then go get Greg might go would Gebhard with me. *6 along run rode and would Sometimes Mike Urbanek get bring and I in and would a chair and it out then wheel hospital him out to him into the and wheel wheel Then last when his whole side went the car. I towards the him no more. I went into Bohlman’s couldn’t even walk Drug and a chair at the house too. Store rented wheel for July . . the . Mr. Steffes died 17th ’76.” following Plaintiff testified that she received the items during two-year period: deceased from the food and lodging; $7,200.00 approximately the sale horses from given plaintiff and cows which deceased had to to take of; $3,200.00 $4,544.00 a care towards Pontiac which purchased plaintiff’s 1976 and titled in the June name. as plaintiff’s efforts trial court summarized although lady not a she was mason
follows: “Now this work, although was not car- did cement and she [she] although work, penter carpentry did and she wasn’t she although bookkeeping work, she an accountant she did nursing a nurse rendered services.” was not she expected to receive Plaintiff testified that she some- Virgil thing performed Steffes services during years of his the last life. The deceased’s two plaintiff friends of both the and the brother-in-law and testified indicated that he deceased that Steffes had plaintiff provide for the and that he wanted wanted However, have house farm on his death. and part did not a will of the Steffes execute sold farm gave purchasers option on land contract and purchase property. farm
HH h-i
plaintiff
The trial court
found
into the
went
housekeeper,
deceased’s home
the housekeeping,
farming
nursing
per
services “rendered
her were
at
knowledge
formed
the instance
with
his
decedent;”
expected compensation
for these services over and above room and board and
gratuities
she received from Mr. Stef fes.2 These
findings
significant
are
court,
long
because this
in a
line
cases,
has
held that where
are
special
instance of the
with
deceased and
his knowl
edge
performed by
and are
expectation
the claimant with
compensation,
recovery
of reasonable
may be allowed on
pay, implied
the basis of a contract
in fact or law.3
The trial court concluded that a
for services can
contract
implied
implied
from the
in law
facts and can also be
(quasi-contract)
ground
unjust
on
enrichment4
*7
plaintiff
and that
can recover the reasonable value of ser
vices rendered to the deceased.5
2
However,
findings
No
of
formal
fact were made in
case.
this
appearing
of
statements
fact
in the
be
court’s decision will
Tomasino,
findings
of
accorded the status
of
Dombrowski v.
fact.
378, 386,
(1965);
27 Wis.2d
134
v.
N.W.2d 420
Stevens White
Corp.,
71,
3,
64,
(1977).
Wis.2d
77
n.
N.W.2d 88
252
3
Voss,
241,
(1963);
Estate
238,
20
121
744
Wis.2d
N.W.2d
of
Ansell,
1, 6,
(1957);
Estate
2 Wis.2d
85
Estate
N.W.2d 786
of
of
555,
Rosenthal,
565,
(1945);
Wis.
247
20
643
Estate
N.W.2d
of
Germain,
409, 411,
(1945);
St.
246 Wis.
17
Kramer v.
N.W.2d 582
Bins,
562, 567,
Wojahn
(1931);
205 Wis.
238 N.W.
v.
407
National
Bank,
646,
(1911);
Union
144 Wis.
129
In Re Estate
N.W. 1068
of
Happel-Bossi,
119,
(1907).
123,
133 Wis.
113
433
N.W.
parties express
agreement by
“When the
their
the con
words
express.
tract
is said to be
When it is manifested
it is
conduct
implied
implied
said
in fact ....
A contract
in law is not
obligation
a contract at
imposed by
justice
all but an
law to do
though
promise
even
it is clear that no
was ever made or intended.”
Perillo, Contraets,
1-12,
(1977).
Calamari &
sec.
P. 19
Kramer
See
City
Hayward,
302, 306-07,
v.
57 Wis.2d
The asserts that the evidence findings that support the trial court’s fact does not at the instance and the services were rendered knowledge expectation and decedent with the compensation. representative’s acknowledges personal brief that
The performed plaintiff’s knowl- were with the services edge and that he ill in the of the decedent while was stay help and him hospital, asked asked her to he not a catheter. so that he did have have Neverthe- argues personal representative trial less the that performed finding were at the court’s the services request instance and cannot be be- deceased’s sustained plaintiff moved to the home of decedent cause the part family. per- of his household and The became representative argues that all because sonal services perform- performed as a member household the request” “at the decedent’s instance ance was expected personal the circumstances. but was under argues plaintiff’s representative expecta- further compensated by room, fulfilled when she tions were was gifts. board, companionship, and asking representative personal In effect that, plaintiff was as a treated court because to hold member of the household direct evidence there no because housekeeper, erred, the trial as a court was hired *8 concluding law, ren- that the services were matter of request. person- instance and The at the decedent’s dered representative authority proposition for no al cites law, canwe find none. of and v. 562, (1931), Bins,
In Kramer 205 238 Wis. N.W. moved into the defendant’s and cared the claimant home ailing alleged him his father. The for and defendant performed agree- claimant services that under parties would be ment that married later and that were rendered without the defendant. the services cost performed that The claimant asserted services at special request expected instance and and that she his payment. two inter questions, The trial court submitted jury: (1) alia, to the Did the claimant render services request, (2) to the defendant at defendant’s and pursuant marriage agreement services rendered a each pay? that was work the other without The jury requested concluded that the defendant had agreed services be rendered but that the had compensation paid. upheld no be court should This jury. nothing verdict There is Kramer opinion performed by Bins to indicate that services a person who is as a of treated member the household housekeeper are, but who was not hired as a as a mat- expected law, cannot, of law, ter matter as a of performed request” “at instance and of the defend- opinion ant. Indeed the it is for the indicates trier person of facts to determine whether of a services treat- performed ed as member of the household are at the request special of instance the defendant and with expectation compensation. of Voss, In Estate Wis.2d N.W.2d housekeeper (1963), decedent for a and com advertised advertisement, panion. period A answered the widow courtship ensued, and there were discussions mar riage. The widow then moved into decedent’s home years, performing with him lived for four services first housekeeper practical then as his as his nurse until They paid. death. never married and she his never was against trial her court allowed claim the estate for of her years the reasonable value the two preceding Voss’s death. the Foss case the court found “positive evidence” that the services were request by placement his the advertisement and commencing services. However this court did not *9 seeking housekeeper is the an advertisement
hold that per- only can that services were which show evidence knowledge request and with his or formed at decedent’s person direct that a was that there must be evidence housekeeper in order for the trier of facts to hired as a person that at the find that services knowledge. request decedent’s and with his legal sup- is conclude no factual basis to We there port personal representative’s argument that because plaintiff treated as a member household the findings support does not the trial court’s evidence housekeeper she went into Steffes’ home as a with the payment expectation of for services and that her services instance of the were rendered deceased and with knowledge. his
III. personal representative argues The next trial holding erred in prevail court that the could on proof implied contract.6 trial court held in implied the instant case that there awas contract in fact pay; express law to it concluded that there was no pay full contract value of the services rendered.7 well-grounded principle We start with the in human experience that renders where one valuable services for payment expected. frequently another is This court has merely accepts stated that “if one services from another him, presumption which are valuable to general, compensation equivalent pass fact arises is to proof parties, upon between the the burden of recipient of the presumption service to rebut such if he supra. See note 4 7 The trial court did determine whether there was an ex press pay contract less than full value for the services rendered. *10 escape would rendering equivalent.” Wojahn from such Bank, 646, National Union 667, 144 Wis. 129 N.W. (1911).8 1068 personal theory representative’s presump- a
The
is that
performed gratuitously ap-
tion that
the
services
plies
family
in
a
the instant case. Where there is
close
marriage
presumes
relationship,
the law
the services
performed gratuitously,
imply
are
the law will not
by
family
from the mere rendition of services
one
mem-
promise
pay.
presumption of
ber to another a
This
gratuitous
presumption
is,
service
the
that services
well-grounded
compensation,
are
in
rendered
human
experience
plaintiff
It
rebuttable.9
is clear that the
marriage.
is not related to the deceased
blood or
The
argues
personal representative
presumption
the
of
gratuitous
apply anyway
service should
because
part
family,
“family”
of Steffes’
the term
being
anyone
used to include
who is a member of the
applying
The
presumption
household.10
basis for
of
gratuitous
cohabiting
persons
service to
but
related
by marriage
ordinary
persons
is that
course of life
together
living
relationship perform
in a close
services
expectation
payment
for each other without
of
8
also,
Germain,
See
Estate
409, 411,
St.
246 Wis.
17 N.W.2d
of
Voss,
(1945);
Estate
238, 242,
582
20 Wis.2d
usual because perform for each out of other other’s needs and obligation. feeling or a sense of of affection representative law in personal asserts that The gratuitous presumption of if a service Wisconsin is that seeking prove applies, party compensation must express compensation.11 contract for existence of personal Goltz, representative relies on Estate of 590, 594, (1931), which this court N.W. Wis. said: “The law is well that ‘where near relatives established by family, marriage together *11 blood or reside as one common another, them and one of renders services to lodging such other furnishes him board and cessaries or party or other ne- comforts, presumption that neither arises pay compensation intended to or to receive hand, services rendered on the or for the one board lodging other; or other necessaries or comforts on the they were intended as mutual acts of kindness done gratuitously.’ Kessler, 660,
or furnished
Estate
87 Wis.
of
664,
129;
Estate,
120,
59
Schmidt’s
N.W.
93
67 N.W.
Wis.
37;
Williams,
79,
835;
Williams
114
v.
89
Wis.
N.W.
Skinner,
Estate
390,
189 Wis.
942.
207 N.W.
of
bring
“Since the facts of this case
it within
rule
give
presumption
gratuitous
stated and
vices,
express
rise to the
of
ser
upon
it
prove
was incumbent
the claimant
an
by
positive
contract
direct and
evidence or to
prove by unequivocal facts and circumstances that which
equivalent
positive
is the
proof
of direct and
of an ex
press
Finch,
278; Tyler
contract. Hall v.
29
v.
Wis.
376;
Burrington,
Pellage
39
Pellage,
136;
Wis.
v.
32 Wis.
Leitgabel Belt,
107,
108 Wis.
We do not it is think the instant case gratuitous presumption to determine whether a ser- persons vice arises where live the same household in relationship, a meretricious because whether the initial presumption compensated is that services were to gratuitously, rendered the final deter- compensated mination of whether the services were to be depends relating on plaintiff’s the circumstances to the entry stay into If Steffes’ household.12 express promise pay proved promise is or a pay implied facts, can be from the then compensation regardless entitled to of the fact rendered services with a affection, sense of devotion and duty. 46, explained Detjen,
As we
in Estate
34 Wis.2d
52-53,
(1967)
negate repayment. Thus the circumstances promise a of implied may support presumption an of an a or inference negate existence, the direct whatever promise its but or may from inferences be drawn evidence and whatever is agree- proving evidence, implied of the burden other falls claimant decedent ment existed between the Wojahn Kuepper, supra; upon National Estate claimant. (1911), 646, 129 N. Bank W. Union Wis. 1068; (1945), Estate St. Germain Wis. (2d) N. W. 582.” employed plaintiff
In the been case bar had con- tavern when she met the deceased. The trial court paying job she left a care of de- cluded that take home; ceased’s that she went farm deceased’s usually performed by housekeeper, labor nurse; farm-hand, mason, carpenter, bookkeeper doing long heavy that she worked and hard work and expected unpleasant testified performing tasks. She said compensation. that the testified decedent Witnesses her and to leave real estate to wanted he wanted per- services provide her.13 Several “ provision by promise to make will in considera verbal [A] though support, or it relates to real estate and tion services specific void the statute of frauds far as enforcement is under presumption concerned, will nevertheless suffice to rebut gratuitous, recovery quantum permitting on promise particularly meruit. The not be intention need definite. object presumption gratuitousness. is to combat If *13 variety, formed were of a commercial and the deceased employees perform hired services similar to those by plaintiff. rendered trial carefully
The court instant case reviewed the relation and situation of the parties, the nature and character of rendered, the services and all the facts and plaintiff circumstances and concluded that en- tered this housekeeper home and remained there as a deceased; although for the that there was a warm and plaintiff affectionate relation between the and de- gifts ceased and plaintiff, the deceased made to the plaintiff expected payment the services and the expressed provide deceased plain- his intent for the tiff; agreement and that an between the pay the deceased that he would for such can implied from the circumstances. trial court’s conclusion in the case at bar con- prior holding sistent with decisions of court particular implied promise under the facts of the case an pay Voss, proved. for services In Estate was 238, Wis.2d we (1963), N.W.2d 744 which discussed previously, claimant, who was not related to the marriage deceased blood or moved into the decedent’s expect- home household services for him ing marriage between herself and the deceased. This say any court “relationship refused to there was whereby party between them either should consider her housekeeper companion services to Mr. Voss as given gratuitously.” viewed We the facts in as Voss presumption sufficient compensation raise the expected. Anderson, Estate 242 Wis. N.W.2d (1943), the deceased asked his ex-wife to allow him done, right recovery, can be there is a with such matters amount, terms, legal general princi- basis determinable under ples MacDonald, of law.” 2 Law, 9.140, Wisconsin Probate sec. p. (Citations omitted.) (7th 49. 1972). ed. *14 506 again. did, they did but
to home with her She make his family remarry. “They lived as a not The court said will had theretofore.” The deceased’s thereafter as property sister, and the ex- all to the deceased’s left the against for services ren- a claim the estate wife filed through This 1928 June 1940. dered from December enough in the case court there was evidence held that presumption that the ex-wife’s services to rebut the gratuitously rendered and held that the ex-wife implied an value of could recover on contract for the period by the within not barred services rendered statute of limitations.14 457, 461, 27 Grossman, 250 N.W.2d In Estate Wis. daughter requested who an adult (1947), father
365 her parents’ come to from home to lived 100 miles ailing help mother. parents’ home and care for ill, died, became After mother the father daughter again job to the home to return left her daughter parents’ home care for the father. sought from compensation for these reasonable prove express an con- did not the father’s estate. She Noting payment. intention of tract gathered parties may acts, from the deeds words circumstances, surrounding parties and the although daughter’s evidence, court concluded that pre- strong,” was “sufficient to overcome the “not too gratuitously per- sumption the services were [that judg- granting trial and sustain the court formed] ment for the services rendered. . . .” Bins, 562, (1931),
In Kramer v.
205 Wis.
We finding support bar to the trial court’s there was *15 implied promise pay plaintiff for. the services ren- dered.
IV. argument personal representative’s final is that knowingly plaintiff voluntarily because the and lived relationship in an adulterous with the decedent she can- implied household, not recover on contract for her farm nursing services. contention, quotes fol support In the estate of its 371, Fox, lowing language Estate 178 Wis. from (1922) : N.W. holding practically unanimous are “Courts knowingly in illicit voluntarily lives a woman when man, implied cannot recover on with a she relations during relationship.” period of such contract case, Fox this language dicta. In the This was obiter good permitted faith believed a woman who court though not, re- man, was married to a she was during relationship. the illicit for services rendered cover adopt harsh Massachusetts rule Our court refused to can woman could not recover because law agreement compensation con- imply when no was no by parties. Instead, templated our court held that the determination of whether a woman who lived in an illegal relationship with a man could recover from the theory implied man on the contract turns on equities of the situation. the Fox case held that we theory implied the woman could recover under a con- denying recovery unjustly tract because would enrich expense. “equity his estate at her saidWe demands that she shall be made whole .... It is from inferred transaction, supposed nature and the husband pay point held to have assumed to because of law equity just pay.” it is that he should equities The trial court in at bar the case looked at the compensated decided that unless unjustly services the Steffes’ estate would be enriched. justice The trial court concluded- that fairness and re- quired paid. that her claim be The trial court stated: person . I “. . don’t think that there is that could today sit here in the courtroom I listen what today Mary heard too and listen all the work that Virgil during Lou did Brooks Steffes his lifetime and anything conclude that other than that estate has been enriched reason of her services. Had he hired some- body to pay do he would have had to them for that and to paid the extent that he has not for those just services that estate has been enriched. He was *16 party much relationship lady to the illicit as this was. question why The enriched when that man I have mind is should the estate be just part was much of the relationship illicit as she not let her have her fair dues. I don’t understand that law that would in- terpret unjust let the other benefit and way deprive enrichment one itdo on the basis that there was relationship illicit equally against but not held the both. . . .” personal representative The Smith, also Smith cites v. 255 96, 100, Wis. 38 N.W.2d 12 support (1949), his plaintiff assertion that be denied compensation by
509
illegal
plaintiff
relationship
of
between the
reason
apparently
woman,
un-
and the deceased. In Smith the
marriages
were invalid
aware that common-law
Wis-
consin,
ostensibly
lived
Mr.
as husband
with
Smith
During
years.
period
wife for more than six
earnings.
parties pooled
the wom-
their labor and
When
married,
couple
he
an discovered that the
was not
refused
compensation
marry
for
her.
for
him,
She sued
services,
equitable
property
but for an
division of
living together.
acquired
The court held
while
against
reasoning
couple was not
the woman
relating
accordingly
married and that
of law
the rules
applicable.15
property
to division of marital
were not
15
years
other
recent
have been a
of cases in
there
number
jurisdictions
upon
involving
property rights
of the
marriage. See, e.g.,
of
termination
their' cohabitation without
Marvin,
Rptr. 815,
Marvin v.
18
P.2d 106
Cal.3d
134 Cal.
557
(1976);
McCullon,
(1978);
v.
McCullon v.
410
Hewitt
N.Y.S.2d 226
Hewitt,
App.3d 861,
454, (1978);
62 Ill.
380
Carlson
N.E.2d
Olson,
(Minn. 1977).
256
For a
of
N.W.2d 249
discussion
issues
see,
Property Rights
cases,
e.g., Marderosian,
raised in these
The
Proposal,
Unmarried Cohabitants — A
485
14 Calif. W.L. Rev.
of
Kay
(1979);
Amyx,
Preserving
Options,
Marvin v.
&
Marvin:
Folbey
(1977);
Buren,
65 Calif. L. Rev.
Domestic
&
Partner
ship:
Proposal
Dividing
Property
A
Fami
Unmarried
for
of
lies,
Property Bights
(1976); Bruch,
12 Willamette L.
J.
of
Spouses Including Thoughts
De Facto
on the Value
Home
of
Services,
Q.
Legal
makers’
(1976); Weitzman,
10 Fam.
L.
Regulation Marriage:
Change,
Tradition and
L.
Calif.
Rev.
of
(1974).
ground
not,
in this case does
on the
of cohabita
tion,
property rights granted
persons.
seek
married
The relevance
parties’
question
cohabitation in the instant case
to the
of
presumption
payment
whether
pre
there is a
for services or a
sumption
gratuitous
question
services and to the
whether
compensation
court will render relief in a claim for
for services
acknowledged
relationship.
in which there is an
“meretricious”
Annot., Recovery
See
Living
Services Rendered
Persons
Apparent Relation
Express Agree
Husband and
Without
Wife
Compensation,
ment
(1979).
The court treated it treated business illegal parties ners who enter into an contract: where “rights illegal upon assert founded an and void contract equity parties ... a court of to such leaves a situa- just placed tion they where themselves as the court any applicant found them. Its doors are closed to relief or from under such a contract.” against
In Smith the court held the claimant because rights by is clear that whatever she seeks en- “[I]t solely illegal force in this action arise reason of the relationship. Since she aware of all the facts which illegal, make the contract she cannot be excused lack for one for knowledge being of equitable of the law. The action property division of the being upon illegal based marriage, an contract of demurrer should have been sustained.” at 100. 255 Wis. We need not consider the rule enunciated in Smith be- inapposite. cause the Smith case, case is In the instant Smith, unlike equitable does not seek an property. division of compensation She seeks for ser- lawfully rendered; vices she does not base her claim on illegal an relationship, right, “quasi- on a marital on a right” marital partnership or on a theory.
The trial court considered the Smith case and dis-
tinguished
from the instant case on the facts
it
two
cases.
this case the trial
court found that
plaintiff’s
nursing
household, farm and
services were
provided
expectation
compensation
with the
that
separate
upon
these services were
from and not based
illegal
arrangement.
or illicit
trial
court stated:
is no evidence here before
“[T]here
me at
least
agreement
any
there was
lady
engage
in sexual
being
relations as in return for
hired
there
house-
keeping services and
relationships
subsequent-
those
ly
place
might
during
took
but which I
add here ceased
year
the last
of his
I
life.
don’t know that
there is
proof
throughout
continued
relationship
*18
year
throughout
period
question.
in
The testi-
two
mony
place
they
they
and I
not,
is
did
did take
that
but
relationships
don’t
those
bar this
believe that
should
lady’s
which she
evidence at
that
and for
action for the services
she rendered
compensated.
.
is no
not been
. . There
has
arrangement
that
that was entered
all
anything
into
was
other than
between Steffes and Brooks
arrangement.
proper
speculate
I would have to
one
way or the
and what
do know
she took
other
we
is that
with
chil-
him,
on these services
left her home and two
according
good
dren,
testimony
her
left
with
it
feeling
point
her and
and to
between
her husband
they
contributing money
that
are still friends and was
he
gave
money
living
and
could
her
while
was
there. You
she
just
easily
assume that
there was no illicit
relationship when these services commenced. Services
illegal
upon
therefore were not based
or illicit ar-
rangement
developed.
page
. Well,
.
that
.
the last
[in
they say they’re ruling
the Smith
is where
case]
they said,
rights
clear that
‘It’s
whatever
she
seeks
by
solely
illegal
in
enforce
action
this
arise
reason of the
Now,
relationship.’
great
that’s a
of difference between
just
what existed there and what exists here. There
is
showing
rights
no
lady
that
this case the
that
solely by
any
seeks to recover or enforce arose
reason of
relationship.
my
illicit
opinion
In fact, the
evidence
contrary.
would be to the
is
There
no evidence that these
people
contemplated
type
ahead
any
romanced
of time or
any relationship
of romance or
while the services were
being
I
rendered. So
fail
to see as I said earlier
any
changes
way
my
Smith
opinion,
case
that
lady
said this
was aware of sufficient facts from which
she should have been
had
able
she known the law to
relationship,
marriage
conclude that
contracted was
that was
illegal
by
not excused
reason
ignorance
illegal
of the law.
of
entire
It was
and she bases her
illegal
claim that
on
contract. She said she could
my opinion
not do so and that
is not in
the case before
then,
going
lady
us here. Now
I am
to conclude that this
is entitled to recover for her
I
services and
base
my findings
conclusion on
the services rendered
by
knowledge
her were
at the instance
with the
decedent,
Mr. Steffes. We have a lot
expectations
talk
about
compensation.”
A rationale similar to the one set forth
the trial
Richmond,
court in the case at bar was used in
Green
compen-
(1975),
Mass.
We conclude that the trial court’s in the Although instant quoted case is sound.16 the oft is rule Thornton, In re Estate 81 Wn.2d 499 P.2d Cf. (1972).
Compare
Frampton,
(1979),
McCall
415 N.Y.S.2d
where
the court
refused
allow the woman to recover
for breach of
impose
contract or to
a constructive trust
in her favor on real
pleaded
The
estate.
court held that
complaint
contract
in the
is
void
public policy
and unenforceable as a matter of
because
agreement
consideration
adultery.
commission of
grant
parties
remedy
that a court will not
to an
illegal contract,17
exceptions
many
there are
and limita-
exception
tions to the rule.18
to the
One limitation or
parties
aiding
One court commented on the doctrine of not
“illegal bargain” involving
relationship
to an
a meretricious
follows:
jurisdictions have,
court and the courts of other
“[T]his
effect,
said,
disputes.
sometimes
‘We will
of such
wash our hands
just
devices,
and must be left
should
to their own
they
pronouncements
me,
where
find themselves.’ To
seem
such
overly
and,
They
fastidious and a bit fatuous.
are unrealistic
among
things,
ignore
(but
other
the fact
that an unannounced
any
binding)
nevertheless effective and
rule of law is inherent
by
such terminal statements
a court of law.
simply
party
“The
who
but inherent
that the
unannounced
rule
title,
possession,
enjoy
has
rights
or in some
is in
will
instances who
ownership
property
of the
The rule often
concerned.
shrewd,
operates
great
cunning
advantage
to the
of the
up
possession
property,
wind
title to it in their
who
with
of the
or
So,
names,
relationship.
the end of a so-called meretricious
although
nothing
proclaim
to do
courts
will have
proclamation
matters,
establishes,
with such
as to the
in itself
parties involved,
binding
an effective
of law which tends
rule
operate purely by
cunning,
perhaps
accident
reason
anticipatory designs
just
parties.”
Knowles,
one of the
West v.
*20
311, 315-16,
(1957).
50 Wash.2d
514 grant rule that remedy parties the will law not a illegal an bargain people contract is that a between two illegal merely is not because there is illicit relation- ship long bargain between the two so as the is inde- pendent relationship of the illicit illicit rela- tionship any part does not constitute of the consideration bargained bargain.19 for and is not a condition of the 589 (1932)
Sec. of the Restatement of Contracts states exception bargain the rule and the as follows: “A in part whole or inor consideration of illicit sexual promise illegal; or intercourse of a subject thereof is but exception to this such intercourse between to a bargain previously subsequently formed in- does not validate it.”
In the case at bar the trial court
that the illicit
found
relationship
plaintiff’s performance
was incidental to the
of lawful services and was not a condition of nor a con-
implied promise
sideration for the deceased’s
to com-
pensate.
findings
view
the trial court’s
case,
contrary
facts of this
we
it
conclude
is
public policy
permit
rea-
to recover the
Contracts,
(Second)
6
Comment
to sec.
Restatement
(March 1, 1977), explains
Tentative Draft
No.
court’s
enforceability
agreement
decision
grounds
as to the
of an
on the
illegality
public policy
“only
bal-
reached
after
careful
ancing,
light
circumstances,
of all the
of the interest
in the
particular promise against
policy
enforcement
against
Only
enforcement of
argue
such terms.
. . .
if the factors that
against
clearly outweigh
enforcement
the law’s traditional
interest
protecting
expectations
parties,
any
its abhorrence of
unjust
any
enactment,
public
interest
in the enforcement of
particular
term will enforcement be denied.”
Corbin, Contracts,
6A
1476, p.
(1962);
sec.
Williston,
Contracts,
(Jaeger
sec. 1745
1972);
3d ed.
Thiede,
Schara v.
489, 495,
Wis.2d
(1973).
For trial court. Judgment By affirmed. the Court. — J., part. Hansen, took no Brooks, (dissenting). plaintiff,
COFFEY, The Mrs. J. children to live in an adulter- left her husband two deceased, man relationship with the a much older ous They an intimate who was also married. maintained longer permitted relationship until health no sexual his performed “services” for the deceased were it. The marriage vows. her husband under her solemn owed to ill, care him and After the deceased she took became farm work. But this was some undertaking. separate It a continuation of the was relationship she had established earlier. meretricious provided majority claims that Brooks Mrs. during lengthy nursing his with “excellent care decedent Moreover, claim that the decedent’s last illness.” his home he son testified that when he visited father’s good kept in condition and that Mrs. found it was Brooks taking good I find, care of his ill father. after thorough record, evidence sub- examination of the no majority’s opinion pro- Brooks stantiate Mrs. nursing care,” provided but rather she vided “excellent totally independent care” as was not “intermediate he taking Secondly, care his own needs. the record fails substantiate that the decedent’s son testi- also good father,” that Mrs. Brooks “took care his ill fied rather testified as but he follows: “Q. you And what’s the condition of the house when ? here good shape. “A. It inwas “Q. you And did she cook ? meals time *22 “A. Yes.
“Q. your And father? “A. Yes. “Q. you your ? When was time that saw father the last May “A. I saw him about the first week in 1976. “Q. And was at ? his home Right, “A. that was at the south house. “Q. you any- Mary And Lou do did observe Brooks thing for him that at time? Yen T did “A “Q. And did do ? what “A. She cooked dinner she cooked meals for us. “Q. any way getting Did she assist him in around? prepared gave She “A. his food for him and him fork and with he ate his left hand. “Q. Did help she have to him walk ? No, “A. “Q. not on that date. He was able to walk all himself ? “A. Yes.” misguided fairness, Out of a sense of the author of majority opinion implies promise pay from the relating plaintiff’s entry “circumstances into and stay in the Steffes I household.” have examined only circumstances cited and can reach the conclu- sion intimacy, marriage sexual violation of their vows, underlying was the motivation Brooks’ Mrs. entry stay into and in the home deceased. Fox, Estate (1922) Wis. N.W. court said that: practically holding “Courts are unanimous voluntarily when a woman knowingly in illicit lives relations with a man implied she cannot recover on an contract for during period rendered him
such relationship. 29 L.R.A.n.s. 787.” Id. 371. opinion majority says Mrs. Brooks testified she expected compensation. disagree. I Her testimony actual was as follows:
“Q. you wages Did any receive from Mr. Steffes? “A. No sir. “Q. July until his death? From of’74 “A. No sir. money “Q. you any for the expect Did to receive you did work that ?
“A. No.
“Q. Pardon?
No,
Mr. Antoine:
always
“A.
that—
but he
told me
“By
object
to what he
I would
said.
*23
hearsay
competent
testify to it.
and she’s not
to
That’s
“By
objection.
I’ll
Court:
sustain the
“By Mr. Urban:
“Q.
you
question ?
Did
understand that
“A. No.
“Q.
expect
you differently.
you
to
Let
ask
Did
me
anything
you performed
receive
Virgil
for the services
July
1974,
of his
17,
Steffes from
until the time
death ?
Object
already
“By
Antoine:
that.
It’s
been
Mr.
to
answered.
“By
question
No,
previous
the Court:
a little
question
you expect
was,
different. The
ceive
re-
other
do
any money,
question is,
you expect
and
this
do
question.
receive anything, and that’s
An-
a different
question.
swer the
“A. Yes.”
Detjen,
In
46,
Estate
84 Wis.2d
to the rule that: promise pay implied . a will not if bene- a expectation payment fit is conferred with no but friendliness, neighborliness, conferred from motives of charity.” kindliness or Id. 280. case, expect paid, Mrs. Brooks did not to be although pointed it should be did out that Mrs. Brooks go food, uncompensated, board, she received clothing, lodging, $7,200 plus from the sale of horses cattle $3,200 living purchase car towards while expected with the deceased. She to leave deceased farm, her the but he sold it before his and did not death proceeds. aware, leave her the Of this fact she was well but still did not leave return her husband children had majority gives Now the abandoned. compensation money expected she never con- prize. money compensation solation The amount of majority awards to the is minor in com- parison gross to the total value the decedent’s estate. *24 However, recovery plaintiff’s fact that is small the the gross compared when to the value of the estate does holding support of the court’s because total the value money Likewise, the estate is of immaterial. the amount robbery taken in an armed or the ob- money amount of forgery in check immaterial, tained a scheme are but the underlying principle granting of law is this court’s of prize a consolation to woman who has abandoned her family and relationship entered adulterous with a in married man violation of the laws of this state. affirming trial the $14,600 court’s award of from the Brooks, depriving estate Mrs. are we not the de- heirs, children, just cedent’s lawful his of their complete inheritance? Is she also allowed to inherit from her predecease own lawful husband should he her entitled a lawful divorce? Is she and before months, rights past ? Within the six share dower-elective Supreme Court, when confronted with Illinois Hewitt, Hewitt v. problem, commented similar (1979) as follows: 394 N.E.2d Ill.2d property mutual cohabitants’ unmarried “The of issue noted, appropri- cannot however, earlier as we rights, law, contract solely in terms of ately be characterized equity or fairness of to considerations is it limited nor relationships. are There parties such between the determining questions involved public policy major circumstances, extent and to what whether, under what legal type status of some to accord it claims desirable is substantially relationships. Of arising from such rights recognition immediate importance of greater than upon so- our impact such of marriage. fact ciety of Will and the institution arising resembling from con- legal rights closely those marriages acquired by de- those who can be ventional been heretofore liberately commonly tionships weaken enter into what have choose to rela- ‘meretricious’ to as ‘illicit’ referred relationships and encourage of such formation family-based marriage foundation of our as the have the survivor society? death shall In the event of purposes surviving spouse inheri- of status of a compensation, tance, wrongful actions, workmen’s death importantly: of children what And still more etc.? support and relationships? their are of such What born custody rights are what standards inheritance sociological psycho- questions ? resolved What type logical upon them of environment? effects recognition legally property enforceable Does not the and emanating custody rights cohabi- from nonmarital equate legalization of practical effect with tation marriage in the common law least circumstances —at increasing summary, num- And, in have the this case? changing mores unmarried cohabitants and bers of general society point . our welfare . . reached the which by a of the citizens of this State is best served *25 something resembling judicially to created return marriage legislature common law our outlawed in 1905?” Id. at 1207-08. bar, there could not be a common-law case marriage and the without a lawful divorce. Mrs. Brooks prior were content maintain their marital deceased to living together open in of their status while defiance vows and of This court the laws the state of Wisconsin. right ought not to allow Brooks to assert a Mrs. growing compensation relationship of- of a which out decency age. any of life- fends standards of Their style rejected condoned, has not been has been but legislature. Moreover, majority’s our decision con- policy Family travenes the intent and of “The Code” of Stats., 245.001(2), this state in which recited sec. as part reads as follows: “(2) It is intent of to 248 chs. Intent. promote stability marriage and best interests family. Marriage is the institution that the foun- is family stability society. dation Its basic morality civilization,
to
ciety
and of vital interest
to so-
consequences
marriage
and the state. The
significant
society
contract are more
other
than those
public
and the
contracts,
interest must be taken
always.
into account
. . .”
majority,
opinion,
in its
cites
California Su-
preme
case,
Marvin,
Court
Marvin v.
660, Cal.3d
Rptr. 815,
(1976),
establishing
Cal.
affairs province ” 191. Id. at states.’ of the to an unfortunate majority resorted has I believe only acceler- surgery serve to can judicial form of of the ’70’s growth cancer self-destructive ate the of the family. If is there “immorality” of the and decline values, traditional assault on the direct, frontal abe very family life, pattern of principles, ideals it should society, American of our and backbone lifeline legislative accomplished within the confines system ill judicial in the courts. halls —not magnitude change of this equipped to deal with a social up-to-date eco- are without the benefit of because we nomic, psychological do- data the field of social reaching implications of relations and the far mestic problems approved abandonment accom- court panying motherless children in the dec- fatherless and condoning ahead. this decision are we not ades With ju- of all abandonment? broken homes? Are 95% from venile law violators broken homes? Are not majority problems far directly the vast of welfare at- If tributable to abandonment? there is need for a change reaching public policy in this question, far necessity, legisla- I fail let it to see the be done after a fact-finding hearing thorough tive where a more dis- *27 only greater knowledge expertise cussion can lead to solving question. in the delicate this most The Illinois Supreme supra, Hewitt, Court in Hewitt held that present decision whether law should be legal changed grant rights so.as or status to a non- case, marital relationship, existed in such is best legislature: left to the question change “. . The . whether is needed in the governing rights
law of in this delicate area relationships involves evaluations of .marriage-like sociological data and alternatives we believe best suited superior investigative fact-finding to the facilities of legislative branch in the exercise of its traditional authority public policy to declare in the domestic rela- tions field.” Id. at 1209. Therefore, I would reverse.