73 A. 878 | Md. | 1909
Nicholas Lowe, a resident of Carroll County, died on the first day of April, 1905, at the age of eighty-one years. For twenty-five years preceding his death he had made his home with his son, James E. Lowe. His wife had died before he went to live with his son. He died intestate, leaving a small personal estate, and about 22 acres of land. He left surviving him children, grandchildren, and great-grandchildren. whose names and places of residence are stated in the record.
On the 11th day of April, 1905, the appellant and other heirs at law of Nicholas Lowe filed a bill in the Circuit Court for Carroll County for the sale of real estate left by his father for partition and division of the proceeds thereof among those entitled to receive the same. Answers were filed, and in due course a decree was passed on the 14th day of July, 1905, directing the property to be sold, and appointed the appellant one of the trustees to make the sale. The trustees sold the property for $1,396.00. The sale was reported to and finally ratified by the Court. Nearly a year after the sale, Andrew Dreschsler, filed a creditor's bill in the cause in which the decree had been passed alleging that Nicholas Lowe at the time of his death was indebted to him and to other persons in large sums of money, and praying that the funds in the hands of the trustees, or so much thereof as might be necessary, be applied to the payment of so much of said indebtedness as remainded unpaid.
On August the 5th, 1907, the appellant filed in the cause the following claim: "The Estate of Nicholas Lowe, deceased.
"To James E. Lowe, for work, labor, lodging, board, goods, materials and money done and furnished the said Nicholas Lowe in his lifetime by said James E. Lowe, at request of said Nicholas Lowe, deceased, as follows: *115
"To boarding and lodging said Nicholas Lowe from May 1st, 1880, to April 1st, 1905, at $75 per year ...................................... $1,868.75
To making and mending clothing from May, 1880, to April 1st, 1905 ............................ 300.00
To washing and ironing from May 1st, 1880, to April 1st, 1905 ............................... 50.00
To nursing and care from April 1st, 1900, to April 1st, 1905 ............................... 25.00
To money loaned July 1st, 1901 .................. 50.00 __________ $2,293.75" Objections to the allowance of this claim were interposed by all the heirs at law of Nicholas Lowe. Testimony was taken before the Auditor for and against the claim. The Auditor's account C filed in the cause disallowed this claim, and to this account the appellant excepted; but the lower Court, after full hearing, overruled his exceptions, and by its order of August 10th, 1908, finally ratified the account, and from that order James E. Lowe has brought this appeal.
There are some questions raised upon the record as to the rulings of the Court upon the exceptions to testimony; but the main, and practically the only question, is this: Upon the evidence appearing in this record, ought this claim be allowed? The testimony of James E. Lowe was excepted to, and was excluded by the Court below. It may be true, as argued by counsel, that it was error to have excluded his whole testimony. Under the case ofSmith v. Humphreys,
This Court has been frequently called upon to consider claims of this nature. The general rule to be applied to such claims is well established. The rule stated in Bantz v. Bantz,
Tested by this rule, is the evidence sufficient to support this claim? There is no satisfactory evidence in the record of any express contract on the part of Nicholas Lowe at the time he went to live with the appellant that he would pay for the services specified in the account. There is some testimony on this point given by Mrs. Lowe, but it is vague and indefinite. She does not say she was present when the agreement was made, and what she does say is too uncertain and equivocal to fix liability upon the deceased. Asked if her husband and Nicholas Lowe had any arrangement or contract *118 by which he was to live with them, she said: "He come there and got his board and washing, and he was to pay for it when hecould." There is a good deal of testimony by the children of the claimant tending to show acknowledgment by the deceased of his indebtedness to his son, and of repeated promises to pay, and if there were nothing in the case to discredit this evidence it might be sufficient to take the case out of the general rule and to allow a recovery upon an implied promise to pay. It is unnecessary for us to analyze or comment upon the testimony of these interested witnesses. They no doubt felt that their father should be paid and we think they have somewhat magnified the services rendered to Mr. Lowe, and minimized very largely his contribution to the support and comfort of the family.
The conduct and declarations of the claimant, it seems to us, are utterly inconsistent with a belief on his part that he had any legal claim against his father. It is not pretended that Nicholas Lowe agreed to pay any definite sum; nor did he ever pay anything to his son during all the years he lived with him. Neither did the claimant, who was a man dependent upon his daily labor for his livelihood, ever present him with an account of his indebtedness, and no account of any kind was ever kept against him. For four or five years the claimant farmed his father's land, had settlements with him and paid over to his father the proceeds of his share of the crops without any deduction on account of his claim. After his father's death in conversation with some of the heirs about the settlement of his estate he made no claim, but stated that he wanted nothing but his share. He became a plaintiff in the case instituted for the sale of the property for purposes of dividing the proceeds thereof among the children of the deceased, and did not file this claim until more than two years after the sale of the property, and not until after the creditors' bill had been filed. This conduct on the part of the claimant cannot be reconciled with the claim he is now making. Its only reasonable explanation is that he had no charge against his father for such services as he had *119 rendered him, and that he had no intention of seeking payment therefor. The conclusion that he had no claim is further strengthened by his statement to Mr. Huber that there was no contract between his father and himself, and that there was no understanding that he should be paid. We are not disposed to relax the salutary rule applicable to cases of this nature. We have carefully considered all the evidence properly in the case, and our conclusion is that the claim of James E. Lowe is not such as can be enforced against or allowed out of the funds in the hands of the trustees, and the order appealed from will be affirmed.
Order affirmed with costs.