Lipperd v. Estate of Lipperd , 181 Mo. App. 106 ( 1914 )

REYNOLDS, P. J.

(after stating the facts). — The case is here on a very full abstract of the record, practically the whole record, including the record proper as well as the bill of exceptions, covering some 206-pages.

The learned counsel for appellant, while making no formal assignment of errors, present 20 points upon which they rely for a reversal of this ease, a great array of authorities being cited, which are claimed to-support the various propositions advanced by these counsel. We.do -not think any public good is to be promoted by takin'g up and considering each one of the points as made separately and at length. Doubtless ■they will appear in the official report of the case. We will add that while the points made are, for the most part supported by authority, very many of them do not meet this case. We will endeavor to dispose of them generally, with the view of determining what we consider the real, the crucial points, in this case.

While filing the account in the court without presentation to the administrator would not be sufficient as a presentation of a demand, it was obviously filed there to advise the probate court that there was a creditor, resident in that county, who held a claim against the estate of N. B. Lipperd, which she desired to have adjudicated. Hence the necessity of appointment of an administrator. There is no error in that. It has, however, been held by our court in Waltemar v. Schnick’s Estate, 102 Mo. App. 133, point 2, l. c. 139 et sec[., 76 S. W. 1053, that when the demand was presented in the probate court the administrator might be served with notice as provided by section 203, Revised Statute 1909, or that he might waive such notice and voluntarily appear, and that the service of notice or presentation or his voluntary appearance in the probate court stopped the running of the Statute ■of Limitations. We refer to this merely that what we have said above may not be held to challenge that which is decided in the Waltemar case.

It appears that at the outset and before the empanelling of a jury, counsel for defendant filed a mo-. tion requiring the clerk of the Schuyler county circuit court to send up an amended transcript and the original papers including the original demand in the case. A full transcript and the original papers required were afterwards sent up by the clerk of the circuit •court of Schuyler county and filed in the cause •on the second day of the trial. Beyond objecting ■to its filing at that time as being filed out of time, counsel for appellant made no attack upon it .and made no application for continuance of the cause. Before this paper was filed, counsel for the respective parties had agreed in a written stipulation filed, that an office copy which had been filed was a true copy of these papers and should thereafter be considered in the cause for all purposes as if duly forwarded by the oircuit clerk of Schuyler county, in connection with and as part of the transcript of the circuit court of Schuyler county in the cause. In the light of this stipulation and in view of the fact that the full transcript was afterwards filed, it is impossible to hold that any harm resulted to appellant, either by failure to file -duly certified papers in the first instance, or after-wards filing them.

It is argued that the account, on its face, is barred by the general Statute of Limitations of this State, referring to section 1895, Revised Statutes 1909. We are unable to agree to this proposition. The account as filed appears to have been a continuing account from 1891 to the date of the death of Napoleon B. Lipperd in 1907. No administrator was appointed in this State until 1910.-

It is argued that the account is barred by the Statute of Limitations of the State of Iowa, requiring demands against an estate to be filed within one year after publication of notice of the granting of letters of administration. The application of the Iowa statute depends upon the fact of residence of the plaintiff, and there is evidence that she had been a resident of Missouri ever since 1908 and was so at the time of this trial. True she had been in Iowa between those •dates, but there is substantial evidence tending to show that she was there merely temporarily and not as a resident. If a citizen and resident of Missouri, plaintiff was not bound to go to the State of Iowa and present her demand in that court, or to the administrator acting under the laws of the State of Iowa. There being property of the decedent in this State, any creditor of the decedent, residing in this State, was entitled to have letters of administration taken out; entitled to have the estate here administered upon in this State, and to have her claims against that estate adjudicated in her home State. That is the recognized law of our State from the earliest times.

This case really resolves itself then into one of fact as to whether plaintiff, respondent here, introduced substantial evidence at the trial of the case from which the jury had a right to conclude that plaintiff was a resident of this State when, in March, 1910, she presented her demand to this administrator, appointed' in this State, and that she had been such resident from about October, 1908, to that time, and that she had rendered the services to her brother in his lifetime, under a contract between that brother and herself,' that she was to be paid for those services.

There was substantial testimony introduced on her behalf in the trial of this case on both points; defendant’s testimony tending to show that her brother, the decedent, had solicited her to come and make her home with him in 1891; that with occasional intermissions she had done so from that time until the date of his death, following him from his different places of abode and being with him up to the time of his last departure for Oklahoma in 1906. There was substantial evidence that her services were not those of a mere domestic but of a nurse. There was substantial testimony as to the value of the services. There was substantial testimony of a promise by the decedent to pay for these services and that plaintiff rendered them in expectation of being paid. It is true that all this evidence for plaintiff was sharply contradicted by that produced on behalf of defendant, but the jury were to determine that and were warranted in finding as they did. So we find no error in the action of the court in refusing an instruction asked by defendant at the close of the case, that under the law and the evidence in the case plaintiff could not recover.

Another instruction which was asked by defendant and refused by the court is as follows:

“In this case unless you believe from the greater weight of the evidence in the cause that notice in writing of the presentation of this claim in controversy was served on the administrator of this estate, or that he waived such presentation and notice thereof in writing within one year next after the 18th day of February, 1910, the first issue of the paper containing the notice of granting the letters in the State of Iowa to the said administrator, your verdict should be for the defendant.”

This instruction assumes that plaintiff was bound to present her claim in Iowa. Holding that if plaintiff was a citizen of and resided in Missouri from 1908 to 1911, she was not bound to do so, and ¡as the question of residence was a fact in issue, we hold that this instruction was properly refused. We do not think that section 1895, Eevised Statutes 1909, is applicable here.

Error is assigned to the admission in evidence of the order of the probate' court in directing the public administrator of Schuyler county to take on the administration of this estate. This order contains this paragraph: “And it appearing to the judge that the claim of Elizabeth Lipperd in the sum of $6960 based on personal services alleged to have been rendered said deceased during his lifetime, is now pending in this court, and that there are no known relatives■ of salid deceased in this State, who are, by laiv, entitled to administer on his estate, except the said Elisabeth Lip-, perd, the claimant here, who herewith files the renunciation of her right to administer on said estate,” etc., the public administrator is directed to take charge of the estate. It is to the words we have italicized in this order that complaint is made, it being claimed that outside of this, there is no substantial evidence other residence in this State. As to the latter proposition, a careful reading of the testimony in the case compels us to say that learned counsel for appellant are mistaken in this assertion. Some three or four witnesses testified to the fact of her residence in this State from sometime in 1908, the spring of summer of that year, until after she commenced this action. Even the younger Mrs. Lipperd, appellant’s own witness, testified that plaintiff lived with them in Missouri in 1908. It is true that plaintiff was absent from the State on several occasions, but there is substantial testimony that these cases of absence were not with intention of changing her abode or residence, in the legal sense of that term. That, however, was submitted to the jury as a question of fact, to be determined on the evidence, and they found against the contention of appellant in the case. Furthermore, when the transcript containing this entry was-offered in evidence, the objection made to it was that it proved to be a paper “filed originally in the circuit court after the mandate was offered as the certificate shows from the probate court having been deposited by the clerk of the probate court in the Schuyler county circuit court. We object further because this paper was not on file when the proceeding began, and it is now filed during the progress of the trial by the leave of court, and over the objections of defendant. It is incompetent, irrelevant and immaterial. Cannot legally be used as evidence in this ease. ’ ’ Here is no specific objection aimed at this particular paper on account of the presence of this recital. The paper itself was properly admitted., If counsel for defendant desired to strike out this particular clause, they could and should have done so by way of instruction to exclude it from consideration of ithe jury; its presence in that paper did not destroy the probative force of the paper itself. Moreover, it seems very curious that counsel should have so earnestly insisted on the production of this very record, and when it was produced, objected to its introduction in evidence. To avoid any misapprehension, we add that a careful examination of the abstract not only fails to™ show that the affidavit of plaintiff to her claim was offered in evidence at all, either as part of this certified copy or otherwise, but on the contrary, shows affirmatively that it was not offered or in evidence. While-counsel for respondent appear to argue as if it had been in evidence, the record shows the contrary and we decline to convict the trial court of error, even on apparent concession of counsel, when the record shows-affirmatively, as it does here, that there was no error.

Learned counsel for appellant complain of all the-instructions given at the instance of plaintiff. We have concluded that the best way to handle this is to-set out, in substance, all the instructions given for both parties.

For plaintiff the court gave eight instructions. First, that if the jury believed from the greater weight of evidence in the cause that plaintiff worked and labored or performed services as housekeeper, servant and nurse for Napoleon B. Lipperd from October, 1891, until April, 1907, the date of his death, or any part of the time, and that such services and work were done- and performed at the request and during the lifetime of said Lipperd, under his promise that he would pay plaintiff for such work and services, and that he failed to so pay her for same, then his estate is liable to> plaintiff for the reasonable value of such services, and their verdict should be for plaintiff for such sum, not exceeding the amount claimed, “ unless you further find from the evidence that said claim is barred by the Statutes of Limitation of the State of Iowa or by the-statutes of the State of Missouri.”

Second. That while the burden is on plaintiff to-establish a contract between herself and Napoleon B. Lipperd to pay her for her services, such contract need not be proven by positive and direct testimony but may be inferred from all the facts and circumstances proven and in evidence and the nature of the services-rendered, if from all the facts and circumstances in ■evidence the jury believe there was a contract and that such services were rendered under said agreement, and, if the jury further believe that plaintiff did the work for the decedent under such agreement expecting to receive pay therefor, then, etc., as in the first instruction.

Third. That under the law a receipt is only primafacie evidence of payment and may be explained, and although the jury may believe that plaintiff signed the receipt in evidence, if they further believe from all the evidence in the case that it was not signed by plaintiff as a receipt in full for the identical services and account sued for, the jury should disregard the receipt. (It may be said in explanation of this instruction that defendant introduced a receipt dated Ores-cent, Oklahoma, April 10, 1906, signed by plaintiff, which reads: “Received of N. B. Lipperd $273.15, full of all accounts to date.” There was testimony in the case for plaintiff, tending to show that this receipt was given in acknowledgment of payment for money theretofore placed by plaintiff in the hands of her brother, and for defendant that it was in settlement for plaintiff’s services to decedent.)

Fourth. The court instructed the jury that although the estate of Napoleon B. Lipperd was administered in Iowa, such administration is of no force asag’ainst creditors who lived in Missouri at the time and ■as to Missouri property.

Fifth. That plaintiff is a single and unmarried woman and that as such the matter of residence is a ■question of intention upon her part, and although a resident of Missouri may work and be employed in Iowa or any other State, that fact alone does not destroy the residence of such person in this State.

The sixth instruction was the usual one as to the •credibility of witnesses, the seventh as to the number ■of jurors necessary to agree in a verdict, and the eighth was as to the form of the verdict, if the jury found for plaintiff.

While counsel for- appellant assign error to the giving of all these, the second and fourth are the only ones upon which any argument and serious attack is made. ' The objection to these is that they failed to require the jury to find a mutual agreement or understanding.

In addition to the refused instructions, which we have before referred to, defendant, asked and the court, át his instance, gave 21 instructions.

The first defines what constitutes a family.

The second told the jury that if one member of a family renders services to another by waiting on or caring for them, such services, in law, are presumed to be rendered gratuitously and without charge.

. The third told the jury that if they found from the greater weight of evidence in the case that plaintiff was a member of the family of the decedent — that they were members of the same family, and during such time plaintiff rendered the services sued for for the decedent, and that those services were valuable to decedent, and that plaintiff had not been paid for them, still she cannot recover unless the jury further found and believed from the greater weight of the evidence in the case that there was a mutual agreement between the parties that plaintiff was to be paid for such services, and that unless plaintiff had proved to the- satisfaction of the jury that at the time plaintiff rendered the services for decedent he intended to pay her for such further than furnishing her a home and board and clothing, they should find for defendant, although they found the services rendered were worth more than such home, board and clothing, provided the jury further found from the greater weight of the evidence “that they were members of one and the same family.”

The fourth told the jury that if they found from the evidence that plaintiff was a member of the family of the decedent — that they were members of the same family, and that during such time plaintiff rendered the services sued for for decedent and that such services were valuable to decedent, and that plaintiff has not been paid for them, still she cannot recover unless the jury further believe from the greater weight of the evidence in the causé that there was a mutual agreement between the-parties that she should be paid for such services. Unless plaintiff has proven and established to the satisfaction of the jury that at the time she rendered the services for decedent, it was her intention to charge and be paid for the same further than being furnished a home and being provided for by decedent, the verdict should be for defendant, even though the jury found that the services rendered were worth more than- such home, board and clothing provided, or the jury further believed from the greater weight of the evidence that “they were members of one and the same family. ’ ’

The fifth, in substance, told the jury that even though plaintiff intended to charge for the services and expected to be paid for them, she could not recover unless the jury further found from the greater weight of evidence in the cause that the decedent at the time expected plaintiff to so charge and that he expected to pay her for the same, “provided you further believe they were both members of one and the same family.”

The sixth told the jury that unless they.believed from the greater weight of evidence in the cause that there was a contract existing between plaintiff and decedent, existing at the time services were rendered by her for him, that he was to pay her for. such services, their verdict should be for defendant, even though the jury may believe that they were worth more than she has received, with the proviso above set out as to the membership of the same family.

(If there was any lack of direction as to the necessity of finding a mutual agreement in the second and fourth instructions given at the instance of plaintiff, and we find none, the third, fourth, fifth and sixth, as well as the eighth, given at the instance of defendant surely supplied that, and all the instructions given are to be tested as a whole.)

The seventh instruction told the jury that if they believed from the evidence that during the time the alleged services were being performed, decedent had on hand money and means which could have been applied in full or partial payment of the alleged services, then these are circumstances which the jury might take into consideration in making up their verdict.

The eighth told the jury that the statement of one member of a family to another, that she or he shall or will be paid out of his or her property after death, for services rendered and to be rendered, “is not such promise to pay that will warrant a recovery for such services rendered and though you may believe from the greater weight of the evidence in the cause that decedent stated, in substance, to plaintiff, you shall be well paid for your services out of my property after my death,” this statement would not warrant or authorize the jury in returning a verdict for plaintiff.

The ninth told the jury that if they, believed and found from the evidence in the case that the $250 bequeathed by deceased to plaintiff was so bequeathed in consideration of services rendered and was by the decedent intended to be in full for such services and plaintiff accepted the same, understanding that that was his intention, their verdict should be for defendant.

The tenth told the jury that it was hot necessary that issues involved should be proven by positive and direct evidence alone but may be proven by circumstantial evidence, and that the jury should take into consideration all the facts, circumstances and conditions proven in the case in passing on the question and issues presented.

The eleventh told the jury that if they believed and found from the greater weight of evidence that decedent before his death had a settlement 'with plaintiff of all matters between them and that decedent paid plaintiff the amount agreed on then to be due, their verdict should be for defendant.

The twelfth told the jury that it devolved on plaintiff to prove by the greater weight of evidence the allegations of the statement and complaint in the case, and that if the jury found from the evidence that plaintiff came to the State of Iowa and entered the home of decedent under an agreement to the effect that since she was his sister and he was able and willing to pay her for her services to be rendered to his family, and that he would pay for them from time to time.such sums as were satisfactory to both of them, without naming any particular sum or rate of wages, and that her wages or compensation as paid by decedent was satisfactory until the date of the death of his wife and breaking up of housekeeping in the State of Oklahoma, and that decedent and plaintiff then and there had a settlement of their accounts in that behalf and he then paid plaintiff the sum of $273.15 as the balance then due her and that afterwards at the home of decedent on the Iowa farm, plaintiff signed the receipt for that amount which was offered and read in evidence, she cannot recover.

The thirteenth told the jury that while the statements and declarations of the decedent against his interests, as testified to by witnesses in the ease, are competent to be considered, the jury are cautioned and directed that such testimony should be received and weighed by them with great care and caution.

The fourteenth told the jury that the two items of the statement filed by plaintiff declared upon an express contract for services at a named rate per year, and unless plaintiff has proven such contract for payment for her services, she cannot recover in this action.

The fifteenth told the jury that the record of the administration, in Davis county, Iowa, shows that it was the domiciliary and principal administration of the estate of the decedent; that letters of administration de bonis non were duly issued thereon by the district court of that county on the 18th of February, 1909, and that due legal notice of the issue thereof was given to date from that date, and that under the laws of the State of Iowa, plaintiff, if then a resident of that State, was required by law to make out her claim against the estate and serve notice thereof upon the administrator of the estate within one year after the day of the taking effect of the notice and that if the jury found that plaintiff was then at that date and afterwards for the space of one year a resident of the State of Iowa, then their verdict should be for defendant.

The sixteenth told the jury that although they might find from the evidence that plaintiff left the State of Iowa within one year next after the date of •the taking effect of the notice of the issue of letters of administration in that State, to-wit, February 18, 1909, and came to the State of Missouri to file this claim in the probate court of Schuyler county and did file it there before or after the end of one year next after date of the taking effect of the notice of the letters of administration in the State of Iowa, then the Statute of Limitations of that State had commenced to run against her and her coming to this State did not stop its running and she cannot recover and your verdict must be for defendant.

The seventeenth told the jury that the statement filed by plaintiff in the cause shows that' at the end of the first seven years of her service there was a cessation of services under the agreement and contract for services then existing and in force, and that a change was made in the nature of the services to be rendered as well as of compensation per year, and unless the plaintiff has shown by the greater weight of the evidence that there was no such cessation of services or change of conduct, then the first item as stated in the complaint is barred by the limitation of five years and your verdict upon that item should be for defendant.

The eighteenth told the jury that an action is not eommenced in the State of Missouri against the estate of a deceased person by the filing of the same in the probate court but is commenced when notice of the presentation of such demand is served on the administrator in writing or he waives such service in writing.

The nineteenth told the jury that though they should find that decedent was indebted to plaintiff in the first item of the account, yet if they found that that item of account became due and payable more than five years from the commencement of the action, that is five years before the 14th of March, 1910, their verdict should be for defendant as to that item.

The twentieth set out the account sued on and told the jury that to warrant plaintiff in recovering on either item or any part of either, she must prove and establish her right by the greater weight of the evidence in the cause to recover under all the instructions by the court given in the case.

The twenty-first instruction was as to the form of the verdict, if for defendant.

The jury, eleven of the members concurring, found for plaintiff in the sum of $1750. The plaintiff recovering this amount under these instructions, is certainly entitled to that verdict. We have set out all the instructions, possibly with unnecessary prolixity, not, however, holding those for appellant to be correct. Whether they are or not, as they were given at the instance of appellant, he certainly cannot complain. They ■do demonstrate that appellant had every claim he made submitted to the jury exactly as he demanded.

We do not consider it necessary to discuss any of the others points made by the learned and industrious counsel for appellant, nor go into a more detailed exposition of the testimony. We have read the abstract, briefs and arguments with great care. Our conclusion on the conduct of the trial is that the learned trial judge exercised great patience and ruled with great ability and with careful regard to the rules governing the admission of evidence. We discover no reversible error occurring at the trial.

The form of the judgment is not correct. Counsel for appellant argue that the defect is that it is against the administrator personally, not against the estate. But even that is incorrect. No execution should have been ordered against anyone. The judgment should have been ordered certified to the probate court of Schuyler county as against the estate. It is not necessary, however, to reverse for that. [Wood v. Flanery, 89 Mo. App. 632, l. c. 643; Hyde v. Honiter, 175 Mo. App. 583, 158 S. W. 83, l. c. 88; Sec. 2083, R. S. 1909.]

It is therefore adjudged by the court here, that the plaintiff have and -recover of the defendant, as administrator of the estate of Napoleon B. Lipperd, deceased, the sum of seventeen hundred and fifty dollars with interest thereon at six per cent per annum from December 21, 1911, as well as her costs herein expended, and that said judgment be and it is hereby certified to the probate court of Schuyler county, Missouri, for classification against said estate as provided by law.

Finding no substantial error the judgment of the •circuit court of Knox county is affirmed as herein amended.

Nortoni and Allen, JJ., concur.