Norman v. Miller, 167 N.W. 391

Norman v. Miller

167 N.W. 391 | S.D. | 1918

WHITING, P. J.

One Mrs. Frieliiog died intestate, leaving as her surviving ¡heire certain children and grandchildren. The youngest of -the children is the plaintiff and appellant herein. At Míe- time of ¡tibe death i of her ¡mother, plaintiff wias over 30 years olf age, and slhe had resided with her mother at all times since her ¡majority. A few days after the death o-f the mother, tih'e childreni met ¡to talk over matters pertaining to, -the settlement -and administration of her estate. This addon -is- brought to retíover $250, and is based! upon, the following cMmts: Plaintiff claims that, at the meeting above referred1 to-, the. question of *401her being recompensed for ■services rendered! in caring for the ¡mother was brought uip; that at such .meeting a Contract wais entered jlntoi whereby, -in consideration off her agreement not 'to file ■any claim against the estate for such services, her brothers and sisters, eaicfa and every one, agreed for pay to her the sum of $250; that', relying upon su'ch contract, ishe did not file'any alaim against suich estate; that -the time for filing claims has expired; and that defendant, ¡one1 of the sisters, hia's refused to comply with Ithe ‘terms of the said contract. Verdict amid judgment -were folr plaintiff. Defendant moved) for a new trial, which motion was granted, and plaintiff appealed from the order granting such new trial.

[1] The motion for new trial 'Was based, upon numerous specifications! of error, among which were speoiflaatioins of the insufficiency off the evidence. Appellant ¡has incorporated into her written) argument a- letter of the trial, judge .addressed to the attorneys herein. In this- letter tire trial judge discusses one ‘of the grdumdls urged upon the motion' tor new (trial. This letter, not being a part of tine settled) record, has abisdlutiely no proper place in the printed 'record herein, except as an authority upon the question therein ''discussed!. It it were Conceded that the . sole ground) uploni which the new trial was granted! was the trial judge’s belief that be 'had erred), at the ¡trial, in his rulings involving the preposition diiscuissed in such, tetter, we would have left for oor consideratioini the one specification which presented suehi conceded ground for granting the new' filial. It would be very pleasing to this court audl might ofttimes save the necessity of .affirming orders granting new trials, if ■ trial courts, in such orders, wduldl clearly state the sole ground! or grounds upon which- each order is based.

[2] In the (present case coe of the groundls -assigned in support oif 'the motion for new trial was the kisufficiency of the evidenice to support) the verdli'cit. Inasmuch as there was conflicting evidence upon material questions, this1 court must, undter the we'l-eS'tlalHishe)d, rule of this court, sustain the trial court, as we have nW ire'aisom to assume that, in granting the new¡ trial, the .trial 'Court did not exercise the disicretiom vested in1 it, under which it was authorized toi grant a new trial if iit believed that, under all off the evidence, justice demanded another trial.

*402[3, 4] One question discussed! in ¡the briefs must necessarily arise upon a new1 trial. It is strenuously urged by respondent that -the alleged contract wlas without consideration, be'cause', as she contends,. tine evidence fails ltd show that plaintiff had a valid claim against her mother's estate. In other wards', it is the contention' oif respondent that, even- if the alleged contract was entered into, yet sluchi contract would' be a nudum pactum unless appellant did actually haVe a valid claim in sotae amount against sudh estate, ¡arid this regardless of whether or not she honestly supposed isihie hlaldl suA a cte-m and ®uA supposition was based upon reasonable and plausible grounds. Respondent contends that far one Ifia agree ¡to refrain from prosecuting a- claim or action the prosecution of whidh could only result In defeat could ¡constitute no cooisi(d!erati'on for a oontralct suA as tire one alleged. It must be conceded that tibe aippellant parted with ndthing of value when she ¡agreed to refrain from presenting a claim against the estate unless, as ¡a matter ¡of fact, she diidi have a valid ¡claim against suA estate. Respondent contends llihat, in the absence of any ¡agreement express or implied under which the mother ¡ba'd agreed to recompense appellant for ¡Continuing to ¡care for -and serve such parent after appellant's majority, tine- law presumes-that .suA ¡care and service ¡ware given gratuitously, and holds that ¿it ¡does- not constitute sufficient -consideration for a valid claim against t)hie parentis estate. Appellant did not prove that there was ¡any .agreement, either express <ar limp-liied, under which her miatbeir -agreed to compensate her far dare and service rendered. But the law favo»-' compromise of .disputed -claim-s, and especially thloise affecting the settlement of - estates, and ¡which 'settlements, ¡owing to the relationship of '.fe- interested parties, will tend to promote family peace and harmony. Tbiere 'are authorities supporting. .respoodenit’-s 'contention. W-e think that rule to be based upon sounder ¡reaisOniing that holds- that, especially as between members of a family and where the agreement is- one to -refrain fram • prosecuting ¡a claim against an esltiate in which such family is interested 'and ¡suA agreement twill tend to¡ preserve the estate anld ¡also -to -promote family peace and barmen}-, suA agreement,-by a party .whose ¡claim .against the estate was made in -good faith .and was basied upon some reasonable and plausible ground, is a good consideration -for a oontnaict ■ ¡such .as ¿the one *403pleaded herein. 5 R. C. L. 880; 8 Cyc. 509; 12 Am. & Eng. Ency. Law (2d Ed.) 875; Chaffee v. Chaffee (Mich.) 163 N. W. 879.

Wie aire iolf line opinion that one who, for 15 years after reaching her majority, remains in the home oí her mother caring for anidi serving such mother under a belief .and expectation that she wlill be recompensed therefor, may.upon the mother’s death have a reasonable and plausible — though perhaps legally insufficient — ground for honesty believing that she has a valid claim against the mother’s estate. The existence of such belief and expectation, as well as the question of good faith on the part of the claimant, are peculiarly matters for the determination of the jury.

The order appealed from is ‘affirmed.