214 P.2d 345 | Or. | 1950
Lead Opinion
This is a motion by the respondent to dismiss an appeal. The proceeding was one to establish a claim against a decedent’s estate in the Circuit Court (Probate Department) for Multnomah County. There was a summary hearing, at the conclusion of which the court entered an order approving the claim, and the executor appealed. Respondent says that the order is not appealable and that the case is controlled by In re Wells’ Estate, 187 Or. 462, 212 P. (2d) 729, in which we held that the right to appeal from a sum
We are of the opinion that the legislature did not intend that the new provisions should be applied to a case of this kind, and that the Wells case is not controlling. While it is well established that a statute taking away jurisdiction should be construed to apply to pending cases, it is entirely clear that there was no general legislative intent to abolish appeals to this court in this class of cases. The expressed intent was to continue in force the right of appeal, but to limit it to those cases where there had been a plenary trial of the claim. Such a trial could be had in the first
So to hold is not inconsistent with Libby v. Southern Pacific Company, 109 Or. 449, 219 P. 604, 220 P. 1017. That case announces the geileral rule that the repeal of a law conferring jurisdiction takes away all right to proceed in actions or other proceedings pending at the time of the repeal. Applying that rule, the court dismissed the appeal because the amount involved was less than the jurisdictional amount prescribed by the repealing statute. It did this notwithstanding the fact that judgment had been entered in
The motion to dismiss is denied.
Opinion on the Merits
On the Merits
T. A. Stoll died testate September 18, 1947. His will was admitted to probate in Multnomah County on October 6, 1947, and Mr. Carl M. Little was appointed executor thereof. On April 29, 1948, Mrs. Edna Smith filed with the executor a claim against decedent’s estate in the sum of $2,250, for special nursing services, and care of decedent’s business affairs, for the period from March 15, 1945, to September 18, 1947. The executor rejected the claim. Thereafter, a summary hearing was had thereon by the Circuit Court for Multnomah County, Department of Probate (section 19-704, O. C. L. A.), and the claim was allowed in full by judgment dated February 7, 1949. The executor moved for a new trial, which was denied, and he appealed from the judgment. He assigns error as follows: (1) Lack of competent satisfactory evidence to support a contract, express or implied, to pay for claimant’s services, or to sustain an action in quantum meruit therefor; (2) lack of competent satisfactory evidence other than the testimony of the plaintiff to support the judgment; (3) denial of the motion for a new trial.
The claimant testified as follows: She was not related to Mr. Stoll. He rented a room at her place
Mrs. lone E. Sax testified: She was acquainted with the decedent. She lived next door to the claimant, Mrs. Smith. During the period covered by Mrs. Smith’s claim, Mrs. Sax visited in claimant’s home at least
Carl Trekell testified: He was formerly employed by Mr. Stoll in his grocery store and butcher shop. He visited him at Mrs. Smith’s home. He had worked for Mr. Stoll for a couple of years, and maintained
Mrs. Lela Van Sicklin testified: She has been a practical nurse for 25 years and is acquainted with Mrs. Smith. She visited Mrs. Smith’s home many
The inventory and appraisement on file shows decedent’s estate to be of the value of $29,034.13. His heirs at law appear to have been three brothers, one sister, three nieces, and two nephews. His will contained two specific bequests of $300 each and one of $400, none of which was to any of his heirs at law. The residue of his estate he devised and bequeathed to one of his nieces.
A claim against a decedent’s estate, which has been rejected by the executor or administrator, cannot be allowed by a court “except upon some competent satisfactory evidence other than the testimony of the claimant”. Section 19-704, O. C. L. A.; Harding v. Grim, 25 Or. 506, 510, 36 P. 634; Goltra v. Penland, 45 Or. 254, 264, 77 P. 129. The allowance, or rejection of such a claim by a probate court after a summary hearing is regarded as a judgment in an action at law and, on appeal, the question is not tried de novo. The
Where services are rendered in reliance solely upon the recipient’s generosity, no action can be maintained for the value of the services. 58 Am. Jur., Work and Labor, section 8; Anno., 54 A. L. R. 552; Ann. Cas. 1913 A, 480. It has been held in a number of cases, however, that, even if there was no express contract, nevertheless, if there was an expectation of payment on the part of the person who rendered the services, although he supposed that such compensation would be made by a provision in the will of the recipient, and if the evidence showed that the recipient recognized his obligation in the premises by stating to others that he expected to make full compensation therefor, then, on the death of the recipient without having made
It is a general rule that, where one performs valuable services for another at his request, and there is no express contract to pay for such services, the law implies a promise on the part of the recipient to pay therefor what the services may reasonably be worth. The implication is said to arise from the recipient’s mere acquiescence in the rendition of the services, and the claimant should be permitted to recover under such circumstances, unless the evidence shows that the services were rendered without expectation of compensation, or that there was an understanding between the parties that they should be rendered gratuitously. In re Estate of McLain, supra (126 Or. 456, 459, 270 P. 534); In re McKinney’s Estate, 175 Or. 28, 36, 149 P. 2d 980, 151 P. 2d 459; Franklin v. Northrup, 107 Or. 537, 551, 215 P. 494. The question in such cases is one of fact, to be determined by the triers of the facts. In re Swank’s Estate, 163 Or. 367, 371, 97 P. 2d 723; Franklin v. Northrup, supra.
That decedent expected to compensate claimant for her services was clearly and substantiall established by evidence of his declarations to third persons. 34 C. J. S., Executors and Administrators, section 452, text and note 87; Estate of McLain, supra (126 Or. 456, 462, 270 P. 534).
It is suggested that the evidence of the value of the services was insufficient. We think that the sug
We are of the opinion that the corroborating evidence in this case was sufficient to support claimant’s contention that she performed the services for which she seeks to recover, and that such services were neither rendered nor accepted with the understanding that they were to be gratuitous. The circumstances were such that a promise to pay may be implied. Estate of Kukas, 120 Or. 542, 543, 252 P. 947; Littlepage v. Security S. & T. Co., supra (137 Or. 559, 561, 3 P. 2d 752). While the corroborating evidence did not establish in detail the services performed, the testimony of two of the witnesses showed that they knew the general character of such services. This was sufficient in this connection. Hiller v. Smith, supra (171 Or. 428, 434, 137 P. 2d 828).
It is contended that, claimant having received payments at regular intervals from decedent for board and room, there is a presumption that such payments were in full for all services, and that she cannot recover additional compensation from his estate for wages or salary, in the absence of “competent satisfactory” evidence of a contract to pay therefor. 24 C. J., Executors and Administrators, section 880; 34 C. J. S., Executors and Administrators, section 370. We have
No evidence whatever was offered by the executor. He contends that the court erred in not granting his motion for a new trial. The newly-discovered evidence upon which he relies in this connection is detailed in affidavits which he filed in support of his motion. These may be summarized as follows: (1) The executor himself deposed that, on October 3,1947, claimant told him of her claim and discussed it with him; that he asked her if she had had any [other] roomers or boarders in her home during the period for which she was claiming compensation for services allegedly performed for Mr. Stoll, and that she said that she did not; that he thereupon told her that her claim was questionable and that he would be obliged to reject it; that, after the hearing on the claim on February 4, 1949, he telephoned to a Mrs. Esther Erickson, a resident of Portland, who had been a friend of decedent’s, informed her of the court’s decision, and told.her of
The claimant filed a counter affidavit in which she stated that Mr. Little was mistaken in alleging that she had told him that she had no roomers or boarders other than Mr. Stoll during the period of time in question; she admitted that Robert Robinson roomed at her place for a period of time during the latter part of the year 1947, but said that he received no board, and that he was employed, and was away from his room during his working hours, and was not in a position to observe the care and services rendered by her to Mr. Stoll; she likewise admitted that Natalie B. Perry roomed at claimant’s home for the period of time mentioned in her affidavit, but said that she did not board there, and that she also was employed and away from her room during her working hours, and was not in a position to observe the services rendered to Mr. Stoll; further, claimant alleged that she never
Section 5-802, snbd. 4, O. C. L. A., authorizes a court to set aside a former judgment and grant a new trial on the motion of the party aggrieved, for “newly discovered evidence, material for the party making the application, which he could not with reasonable diligence have discovered and produced at the trial”.
“ * * * Newly-discovered evidence which will justify a court in setting aside a verdict and granting a new trial must fulfill the following requirements : ‘ (1) It must be such as will probably change the result if a new trial is granted; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be merely cumulative to the former evidence; (6) it must not be merely impeaching or contradicting the former evidence’; 14 Ency. Pl. & Pr. 791; Berry v. State, 10 Ga. 511. * * * ”
State v. Hill, 39 Or. 90, 94, 65 P. 518.
We are of the opinion that the showing made by the executor was insufficient to have justified the court in setting aside the judgment and granting a new trial. There was no showing whatever that he used due diligence to discover such evidence. The record is silent as to who Mrs. Esther Erickson is, except that she was a friend of decedent’s; as to why the executor reported to her the result of the hearing; and as to why, if Mrs. Erickson was likely to know of the existence of evidence not known by the executor, he failed to inquire of her before the hearing. It would seem, therefore, that the showing made by the executor
The judgment appealed from is affirmed.