Fred v. Asbury , 105 Ark. 494 ( 1912 )

Hart, J.,

(after stating the facts). The statute of non-claim is urged as a bar to the relief sought. This statute provides that all claims against estates of deceased persons shall be barred unless they are properly authenticated and presented to the executor or administrator within one year after the grant of letters; but this is not a proceeding to enforce a claim or demand against the estate of Jacob Fred, deceased, but is one to determine the rights of the parties to this suit to the property in question. The statute of nonclaim does not refer to claims of title or for the recovery of property for the reason that claims of such a character can not in any just sense be said to be claims against the estate of the deceased. On the contrary, the right to recover is based upon the fact that the property claimed does not belong to the estate, but belongs to the party asserting title to it. 18 Cyc. 456; Krutsen v. Krock, 127 N. W. (Minn.) 11; Haven v. Haven, 64 N. E. (Mass.) 410.

It is also contended that the statute of frauds is a bar to the right of recovery by the 'plaintiffs. Mr. Pomeroy, in discussing the subject “of specific performance of parol contracts, recognizes the general rule that payments in money is not a part performance because the remedy at law is adequate for its recovery and there has been no irrevocable change of position, but in discussing the question of whether personal services is a sufficient act of part performance to take the case out of the statute said: “Where the consideration is paid, not in the form of money, but in the form of personal services of a character such that they do not readily admit of a pecuniary estimate or recompense, shall this be considered an act of part performance? On this question the American jurisdictions are very evenly divided; the answer must depend on the theory which is adopted as the basis of the whole doctrine. On the first theory stated in a former paragraph, payment in services no more points to a contract concerning specific land than does payment in money; in fact, in the ordinary case— domestic services by a relative or by an adopted child — the fact of the services rendered gives rise to no inference of any contract whatever.' On the other hand, if equitable fraud be taken as the basis of the doctrine, and the impossibility of restoring the complainant to the situation in which he was before the contract was made, the rendering of services, for a long term of years, the value of which can not be estimated by any pecuniary standard, must be considered an act of part performance of the highest character; the fraud upon the complainant is often greater than that resulting from either the taking of possession or the making of improvements. The promise, in these cases, has nearly always been to make a will devising lands to plaintiff; the services rendered, the care of an aged or invalid relative, often coupled with an abandonment of the plaintiff’s previous home or occupation; or, in a large group of cases, the entire change of situation resulting from a virtual adoption of the plaintiff, when a minor, into the promisor’s family, and the discharge of the domestic duties and obligations of affection flowing from such relation.”

The learned author cites the authorities on both sides of the question, but we do not deem it necessary to enter into a discussion of them here for the reason that our court has adopted the latter theory. In the case of Hinkle v. Hinkle, 55 Ark. 583, Mr. Justice Hemingway, in discussing the question, said:

“But the defendant pleads the statute of frauds, and the question is, if the statute applies, whether there has been such performance as to take the case out of its operation. Martin did everything he agreed to do. He gave up his employment, changed his residence, .assisted in caring for his mother and in managing and conducting the business, moved upon the land and expended money in improving it. If the statute could defeat his claim, it would become a means of fraud, not of its prevention. He did more than pay for, move on, and improve the land; he surrendered his employment and changed his home and avocation, and no return of the money expended would compensate him for annulling the contract.”

What was said in that case applies with equal force here. The parol contract under consideration was not only mutual but was definite and certain, both in its terms and as to its subject-matter. It was clearly proved, and the services performed were referable to the contract alone, and were done for the purpose of carrying it into effect. Chas. Asbury was a young man, and had a good position in Indiana when the contract was entered into. He did not wish to leave that State and come to Arkansas. In pursuance of the contract between Jacob Fred and his wife and himself, he left that State and came to Arkansas with Jacob Fred. He and his wife provided a home for Fred, and nursed and cared for him during the remainder of his life. Although Fred was a cripple and an invalid during all this time, they tenderly nursed and cared for him and provided him with all the comforts they were able to furnish. Their testimony, both in regard to the terms of the contract and the services they performed in carrying it out, is clear and explicit, and is corroborated by the testimony of their neighbors, as well as by the testimony of some of the relatives of Jacob Fred. It is not contradicted in any material point by any witness. They assumed a peculiar and personal relation to Jacob Fred, and, according to their testimony, which is not disputed, rendered him services of such character that it is practically impossible to ascertain their value by any pecuniary standard. By entering into the contract with Jacob Fred, they changed the whole course of their life and devoted themselves to making his last days comfortable and pleasant, and, as said in the Hinkle case, if the statute could defeat their claim, it would become a means of fraud, and not of its prevention.

The decree will be affirmed.