185 Ky. 106 | Ky. Ct. App. | 1919
Opinion op the Court by
Affirming in part and reversing in part.
TMs action was instituted for the settlement of the estate of Elizabeth May, deceased, and during the taking of evidence it was discovered that a short time before the death of Mrs. May she had entered into a contract with appellant Hester McCormick, whereby Mrs. McCormick was to board and care for her, and while Mrs. May was boarding with Mrs. McCormick she became sick and directed Mrs. McCormick to go
All these allegations were traversed by the administratrix except she admitted that Mrs. McCormick had received the $325.60 and the $544 of money belonging to
Proof was taken in support of the issues and the case being submitted for judgment, the court entered a decree finding the contract made between Mrs. May and Mrs. McCormick with reference to the board and care to contain only these conditions: that Mrs. McCormick was to receive, board and care for Mrs. May for which Mrs. May was to pay her $5, per month, and furnish a house in which they all should live. That part of the contract alleged by Mrs. McCormick under which she claimed additional compensation during the sickness of Mrs. May, was rejected by the court as unproven. However, the judgment allowed Mrs. McCormick the $5 per month board which had been paid by Mrs. May and the further sum of $300.60 which had been received by Mrs. McCormick from the bank and applied to her own uses, but the court adjudged the $544 received by Mrs. McCormick from Mrs. May for safe keeping to belong to the estate, and adjudged Mrs. McCormick indebted to the estate of Elizabeth May in said sum. The court further found that Mrs. May executed a will by which she devised the house and lot in East Bernstadt to Mrs. McCormick. With all these findings we heartily concur, but are at a loss to understand upon what the learned trial judge based the remainder of the judgment which is as follows: “It further appearing that said Hester McCormick'is insolvent and- said house and lot is worth not exceeding $300, the court is of the opinion that it was not the intention of said Elizabeth May that said Hester McCormick should receive from her estate $544 and said house and lot, but that she only intended to make provision for the payment of a reasonable amount for her services in caring for her in her last illness. For this reason, it is further adjudged that the defendant, Hester McCormick, be required to elect now as to whether she will pay said $544 as herein adjudged, or reconvey said house and lot to said devisees of said Elizabeth May, and she now having-elected to retain said $544 and having declined to pay same, or any part thereof, she is ordered and directed to immediately convey said house and lot to said devisees, plaintiffs and defendants herein, Cora D. Smith, etc. . . . , and said Hester McCormick having refused to make said conveyance, it is adjudged that the master commissioner of this court now make the same and said commissioner is now; ordered and directed to prepare and
The house and lot were not in controversy. The will had been duly and regularly probated in the Laurel .County Court and was not contested. No appeal had been prosecuted from the judgment probating the will. The title, therefore, to the house and lot was duly and regularly vested in Hester McCormick at the time of the institution of this action, and Mrs. McCormick was in possession thereof. While Mrs. McCormick had received from Mrs. May at the instance of Mrs. May the sum of $544 to be held for the use and benefit of Mrs. May and while this sum had not been repaid or accounted for by Mrs. McCormick, it was. not within the province of the trial court to adjudge said sum a lien upon the house and lot, which was the homestead of Mrs. McCormick. The obligation was one in personam and not in rem. There is no pleading or proof in the record which sustains the judgment in so far as it attempts to subject the house and lot to the payment of the $544. It, therefore, appears that the judgment in’ so far as it undertakes to subject the house and lot to the payment of this obligation or to compel the appellant to reconvey the house and lot to the heirs of Mrs. May is erroneous and must be reversed.
The appellant in her brief insists only that the judgment is erroneous in that it is not supported by the pleadings or proof, especially that part which directs the master commissioner for and on behalf of Mrs. McCormick to convey the house and lot to the heirs of Mrs. May. Appellees ’ brief insists that the judgment should not be disturbed for three reasons: (1) that the transcript was not filed within the time fixed by section 738 Civil Code, and the appeal should be dismissed; (2) the trans-script is incomplete, and being so, this court is unable to determine whether the pleadings support the judgment, and the judgment must therefore be affirmed under our well established rule that the presumption will be indulged in such case that the uncertified part of the record, if presented, would sustain the judgment of the lower court; (3) there was no express contract alleged or proven by Mrs. McCormick which would entitle her to recover for services rendered to an aged relative residing in her family. Let us consider these three contentions separately:
(2) The transcript is incomplete. Only a part of the pleadings are copied. The original petition is not in the record nor is there an answer or other pleadings filed previous to the amended petition which is the beginning of the transcript in this case. Just what the petition or other pleading contained we cannot surmise. We cannot say whether they support the judgment rendered by the lower court or not. But we do know the admission of the pleading of appellees that Mrs. May devised the house and lot to Mrs. McCormick is sufficient, being a subsequent pleading to bind the appellees and to prevent their asserting á lien upon the house and lot in question. We do not overlook the rule that where there is a partial transcript
(3) We have several times written that where relatives live together in the same family, the presumption will be that they do so live by mutual consent for the convenience of each other, and that each receives' some benefit from the arrangement, and that one is not to compensate the other for services rendered unless the claim for such compensation be supported by clear and convincing proof of an express contract. Armstrong’s Admr. v. Shannon, 177 Ky. 547; Bolling v. Bolling’s Admr., 146 Ky. 316; Ballard v. Ballard, 177 Ky. 260. The trial court was of opinion that Mrs. McCormick did not prove an express contract with Mrs. May for additional compensation, and while there is some evidence on each side, we are inclined to the opinion that the judgment of the lower court is sustained by the weight of the evidence. We, therefore, conclude that the judgment must be affirmed in all respects except in so far as it directs the master commissioner of the Laurel Circuit Court to convey for. Mrs. McCormick the house and lot in East Bernstadt to the heirs of Mrs. May named in the judgment. To this extent it is reversed, with direction to modify the judgment so as to conform to this opinion.
Judgment affirmed in part and reversed in part.