Martin v. Estate of Martin

108 Wis. 284 | Wis. | 1900

WiNslow, J.

The bill of exceptions is not certified to contain all the evidence; hence we are relieved from the consideration of the question whether the verdict, or any part of it, is supported by the evidence, and the only important question in the case is whether the verdict and admitted facts sustain the judgment.

The facts may be briefly summarized as follows: A boy eight years of age is taken by a woman into her family under incomplete or defective adoption papers, coupled with an oral agreement with the boy’s parent to leave him her property, consisting principally of real estate, in consideration of the boy’s services. No legal adoption takes place, but the boy stays and does the ordinary work of a boy on a farm, and is treated as a son, until he is somewhere from eighteen to twenty-one years of age, when he leaves and never returns to render services. Afterwards the woman dies intestate, leaving as her estate the real property before mentioned and a trifling amount of personal property. The claimant then files his bill for the reasonable value of his services, which ceased at least eleven years before the death of the woman. Can he recover ?

Under well-settled rules of law adopted by this court, this question must be answered in the negative. Although not of kin to the intestate, the plaintiff was received into her family as a son, and the services rendered by him were rendered in that capacity; hence the presumption is that they were not to be paid for, and that presumption can only be rebutted by proof, either direct or circumstantial, which establishes an express contract to pay for them. Tyler v. Burrington, 39 Wis. 376; Wells v. Perkins, 43 Wis. 160. The express contract which was shown was oral, and was in part a contract to devise real property, and hence within the statute of frauds (Stats. 1898, sec. 2304), and, being void as to the real estate, and indivisible, is void in whole. Ellis v. Cary, 74 Wis. 176; Estate of Kessler, 87 Wis. 660, and cases cited. This contract, though absolutely void, still has the effect of rebutting the presumption that the services were to be gratuitous (Estate of Kessler, supra), and so opening the way to a recovery of the reasonable value of the services (Koch v. Williams, 82 Wis. 186, and cases cited).

Manifestly, however, the void contract did not extend the time of payment for the services, and the plaintiff, if entitled to recover at all, could have made his demand and brought his action in 1886, when his services had wholly ceased and he had attained his majority. The supposed contract would have been no defense to the action, because the statute in this state makes it void. Thomas v. Sowards, 25 Wis. 631. Not having brought his action, it was barred by the six-year statute of limitation (Stats. 1898, sec. 4222) before the death of the intestate in 1897.

A claim is made that the statute of limitations was not properly pleaded, but, as this is a claim against an estate, it was not necessary to plead it. The statute forbids the allowance of a claim which is shown to be barred by the statute of limitations. 'Sec. 3841.

We are aware that there are authorities in other states holding that an oral contract similar to the one before us is not void, but may be specifically enforced on the ground of partial performance. Wright v. Wright, 99 Mich. 170, and cases cited. It is enough to say, however, that this court has not adopted that rule.

We have discussed the case upon the basis that it is established that the agreement to devise property to the plaintiff was an oral one, but we have not overlooked the fact that the verdict does not in specific language declare it to have been oral. The second question of the verdict asks the jury whether Catherine Martin at the time of the making of the adoption papers promised and agreed that she would give the plaintiff all her property, real and personal, at her death, and to this question the jury have given an affirmative answer. Now, it may be argued that this finding is a finding of a valid (i. e. a written) promise or agreement, and that in the absence of a complete bill of exceptions it must be conclusively presumed that there was evidence to support the finding; hence that it must be deemed a fact in the case that the agreement was in writing and valid. Whether this contention could avail the plaintiff anything in an action brought tó recover the value of his services, in which ho must repudiate the contract in order to recover, would seem to be a serious question; but, howbver that may be, we think that the only fair and reasonable construction of the finding is that the promise was oral. It will be noticed that the first question and answer find specifically that the parties executed certain supposed adoption papers, and that the second question omits all reference to the execution of any papers, but simply asks the jury whether Catherine Martin did “ promise and agree ” to give the plaintiff her property at the time of the making of the adoption papers. The careful reference to the execution of papers in the first question, and the equally careful omission of all such reference in the second question, clearly indicate to any mind that the second question refers to an entirely different kind of an agreement or promise, and one not evidenced by the execution of any papers; and we cannot escape the conclusion that a jury would at once answer the second question in the .affirmative if they were satisfied of the making of an oral promise.

‘When, moreover, the charge which was given to the jury-in connection with the second question is considered, there can be no doubt, we think, that the affirmative answer to the question must be construed as simply the finding of an oral promise. This charge was as follows: “ This question you will answer, also, from the consideration of all the evidence: Was it the understanding with the plaintiff’s mother and the Ma/rtins that the latter should adopt the plavntiff and malte him their hew ? And did the plaintiff’s mother consent to the proposed adoption on such conditions ? This is a question of fact, and you will answer it in such a way as the evidence will warrant.” Here the jury are plainly told ■that the question is whether there was an understtmding between Mrs. Martin and the plaintiff’s mother. If the jury paid heed to this instruction,— and we must assume that they did,— then their affirmative answer to the question is equivalent merely to a finding that there was an oral “ understanding ” between the parties. As matter of fact, all the evidence returned which bears on the subject shows that the agreement was by parol; but this is not, of course, conclusive, in the absence of a certificate showing that all the evidence is returned.

By the Oourt.— Judgment reversed, and.action remanded with directions to enter judgment dismissing the claim.