2 Ind. App. 524 | Ind. Ct. App. | 1891
The appellee filed a complaint, in the nature of a claim, against the estate of Charles G. Nelson, deceased, for work, labor and services performed during the lifetime of the decedent.
The answer was general denial and set-off. There was a trial by a jury, resulting in a verdict for the appellee. A proper allowance, or judgment, was rendered thereon against the estate of said decedent over a motion for a new trial.
The only error assigned is the alleged error of the circuit court in overruling the motion for a new trial. This motion assigned as causes for a new trial that the verdict was not sustained by sufficient evidence; that the verdict was contrary to law; that the damages were excessive; that the court erred in admitting and excluding certain evidence, and in
The evidence clearly shows that the appellee based her claim against the decedent’s estate upon the following facts : The appellee was a niece of the decedent, Charles T. Nelson, and when she was sixteen years of age the decedent took her home to live with him, under promise to her and her parents, that if appellee would go to his house and live with him she should take the place of his deceased daughter in his house and in his affections; that he would educate, clothe and support her as his own daughter, and would make her an heir to his estate equal to his two sons. Under this promise appellee went and lived in the home of the decedent, remaining there until he died. During the time appellee lived with decedent he frequently expressed an intention of providing for her by will or otherwise, so that she should be an equal heir in his estate with his' two sons. The appellee so remained and continued to live with the decedent for a period of about six years, and did and performed her duties in such faithful manner as to meet and fulfil the expectations and desires of the decedent, but he died without making any provision for her by will or otherwise, or providing any means for her compensation.
There is no doubt, under the evidence, that it was in consideration of the promises of the decedent that appellee went to live with and made her home with the decedent.
The contract thus proven is void, and comes within the statute of frauds. It can not be enforced, but the facts thus proven rebut the presumption, which otherwise might have obtained, that the services rendered were to have been gratuitously performed, and that they were performed under the
Under these facts it can not be said that the services rendered by the appellee were to be gratuitously performed, but, on the contrary, the presumption which otherwise might have obtained is rebutted, and appellee was entitled to recover the value of her services, and in estimating the value of the services regard should be paid to the situation of the parties and the nature of the services required or performed. In such case the value of the services performed, and not the value of the property agreed to be conveyed, is the measure of damages.
The evidence tends to sustain the verdict, and the damages do not appear to have been excessive.
The fifth cause assigned for a new trial calls in question the ruling of the court upon the admission of certain evidence on the trial of the cause oyer the objection and exception of the appellant.
D. M. Hammond, a witness on behalf of the appellee, was permitted to answer the following question :
“ State what, if anything, Belle did in reference to controlling or having charge of the house.”
The witness answered :
“ I think I am safe in saying she'had ; I know she had.”
There was no error in the admission of this evidence.
Under the sixth, seventh, eighth, ninth, and tenth causes it is contended that the court erred in permitting certain witnesses, who did not live in the immediate vicinity of Grandview, the residence of the decedent previous to his death, and the place at which appellee rendered the service for which this claim was filed, to testify as to the value of the services rendered upon a state of facts assuming the nature, kind, and character of service' done and performed by the appellee for the decedent. The testimony of these several witnesses was in answer to questions as
The eleventh cause for a new trial is error in the court in refusing to strike out, on appellant’s motion, certain evidence introduced by the appellee. As the objection of the appellant was withdrawn to the introduction of said evidence, no question is, presented, under this cause in the motion for a new trial, for review by this court.
Under the thirteenth cause fora new trial, it is alleged that the trial court erred in admitting in evidence the testimony of the appellee as to her testimony on a former trial in the case of Lydia Huff against Charles T. Nelson, the decedent, during the lifetime, and in the presence of said decedent, and in admitting in evidence the testimony of the appellee as a witness in her own behalf in relation to her former testimony-as a witness in the Lydia A. Huff trial, in the presence of the decedent,Charles T. Nelson, and as to what she had testified to on said trial, and in permitting her to testify that she did not remember of testifying in the said Huff trial that she was staying at the decedent’s for her board and clothes, and that, if she did so testify on the Huff trial, that “ Lydia Huff was staying there, just as I am, as a member of the family, for
The question raised under this cause for a new trial will be better understood by reference to the facts as they appear in the record as connected with and affecting this particular question.
It appears that one Lydia Huff had been living with decedent in his lifetime, and that she commenced an action against him at the April term, 1883, of the Spencer Circuit Court for work and labor, care and attention performed and done for him during several years immediately previous to the commencement of said action ; that said action was tried and determined on the 21st day of April, 1883, and that appellee was a witness and testified on the trial thereof in behalf of said decedent, who was then living.
On the trial of this cause the appellant proved by three witnesses that they were present at the trial of the case of Lydia Huff against Charles T. Nelson, the decedent, and that said Charles T. Nelson was present; that the appellee testified as a witness in said cause on behalf of said Nelson, and in his presence, “ that Lydia Huff was living at Nelson’s as a member of the family for her board and clothes, just as I am myself.” When the evidence was concluded for appellant, appellee offered to testify as a witness in rebuttal in her own behalf, and the court, over the objections and exceptions of the appellant, permitted the appellee to testify as a witness in her own behalf as follows, to wit:
“ It has been some time since that trial, but I don’t remember saying anything of the kind ; I don’t think I said that; I don’t think I testified that I was working for my board and clothes, but if I did I had reference to a year or one and one-half years before I went there.”
The ruling of the trial court in permitting the appellee to testify as a witness in her own behalf comes within the rule stated in the case of Cupp v. Ayers, 89 Ind. 60, that “ When
If it was the right of appellee under the law to testify in her own behalf to the facts about which she did testify, she must have derived that right under section 498, R. S. 1881, which provides, “ In suits or proceedings in which an executor or administrator is a party, involving matters which occurred during the lifetime of the decedent, where a judgment or allowance may be made or rendered for or against the estate represented by such executor or administrator, any person who is a necessary party to the issue or record, whose interest is adverse to such estate, shall not be a competent witness as to such matters against such estate.”
■ Under this section the test of competency depends not so much upon the fact to which the adverse party is called upon to testify as upon the contract or matter involved in the issue in the case. Where the contract or matter involved in the suit or proceedings is such that one of the parties to the contract or transaction is by death denied the privilege of testifying in relation to such matter, the policy of the statute is to close the lips of the other also in respect to such matter. Taylor v. Duesterberg, 109 Ind. 165; Allen v. Jones, 1 Ind. App. 63.
These principles apply with much force to the question under consideration, and make clear the conclusion to which
The evidence of the appellee was material and important to one issue in the case, which was that she was living with the decedent as a member of his family for her board and clothing. The evidence of the witnesses as to her statements under oath in the presence of the decedent as to the nature of the contract under which she was living with the decedent had a material and important bearing upon that issue.
There are other questions discussed by counsel under the causes assigned in the motion for a new trial, but having arrived at the conclusion that the case must be reversed for the error as indicated, we do not deem it necessary to pass upon and determine other questions.
The cause is therefore reversed, with instructions to grant a new trial at the costs of the appellee,
Reinhakd, J., was absent.