In Re Swank's Estate , 163 Or. 367 ( 1939 )

This is an appeal from an order of the probate department of the Circuit Court for Multnomah county rejecting the claim of Evelyn V. Turner against the administrator of the estate of William I. Swank, deceased, for services as a practical nurse alleged to have been rendered the deceased during his lifetime, and for moneys expended on his behalf. The question is as to the sufficiency of the claimant's evidence.

Mr. Swank died intestate January 5, 1939. He was a widower, his wife having died in January, 1930. He left surviving him two sons, Philip M. and Robert I. His estate consisted of real property, appraised at $2100, and personal property, appraised at $175. The services are claimed to have been reasonably worth the sum of $1125 — $300 for the year 1937 and the first three months of 1938 at the rate of $20 per month, and $825 for the period from April, 1938, to January 5, 1939, at the rate of $90 per month. In addition the sum of $30 is claimed for telephone and dentist bills owed by the decedent and paid by Mrs. Turner.

The record shows that Mrs. Turner first met Mr. Swank at Shipperd's Springs about twenty-five years before his death. They became close friends, although she seems never to have been at his home until after Mrs. Swank's death nor to have had any acquaintance with Mrs. Swank other than that she met her socially on a few occasions. She was not a friend of the family. Philip M. Swank, one of the sons, first met the claimant in 1932, about two years after his mother's death, when he returned unexpectedly home from a fishing trip and found her with his father in the kitchen preparing food. In 1934, acording to Philip's testimony, Mrs. Turner moved to the Swank home, though it was Mrs. Turner's recollection that she first went there to stay in 1932, or early in 1933, when the deceased suffered a paralytic stroke. She stayed there, according to her testimony, "off and on" until 1934, and from then until his death was in the home continuously. In 1935 Mr. Swank underwent a stomach operation, and Mrs. Turner helped take care of him. She does not claim compensation for any services rendered prior to 1937. She testified that she had already been compensated for those services; that there was no stipulated salary for that particular time but a "tacit agreement" that she should be paid; and that sometimes she was paid $5 a week, sometimes $10 a week, and that Mr. Swank always gave her money to keep up her apartment, which cost $15 a month. On cross-examination she repeated, "When I went there to stay we had a tacit agreement", which she explained as follows: "I mean I had to have my expenses kept up, you know, my apartment, and I had to receive some money besides, which I always did."

In March, 1938, Mr. Swank suffered another paralytic stroke. From that time until his death in January, 1939, there is testimony given by the claimant and Mr. Swank's physician, Dr. Ong, tending to prove that Mr. Swank needed the care of a practical nurse; that Mrs. Turner furnished that care; and that her services were reasonably worth the sum of $90 a month.

During the time that the claimant lived at the home of the deceased, according to the uncontradicted testimony of Philip Swank, Mrs. Turner and the deceased were on affectionate terms. She would sometimes kiss him when he left home and returned. Generally she presided over the home rather as a member of the household than as a housekeeper. She admitted that they were very good friends before Mrs. Swank's death, and that after Mrs. Swank's death this friendship became closer.

Mrs. Lorrie K. Swank, the wife of Philip, testified that in 1936 she came to Portland on a visit, that the deceased met her at the train, and asked her to go to a hotel to stay, because, as he said, Mrs. Turner was so cross and disagreeable that the witness would be more comfortable in a hotel than at his home.

There is testimony that during the year 1937 the deceased was in fairly good health and active in his business.

There is no testimony that the claimant kept an account of moneys now sued for, or that she made demand for payment prior to Mr. Swank's death.

According to her testimony, she advanced various sums of money for the payment of bills and household expenses, sold some of Mr. Swank's furniture and out of the proceeds partially reimbursed herself for such advances, and still had in her possession at the time of his death $50 of the amount so derived. She testified:

"But I had drawn, Your Honor, on my own bank account for quite a sum. There was a shortage of money in the house and we had to live and we had to eat, Your Honor, and we had to sleep. That was prior, of course, to the time that I began to sell the furniture." On appeal from an order allowing or rejecting a claim against a decedent's estate the supreme court does not try the case denovo as in equity proceedings. The hearing upon such a claim is in the nature of an action at law: In re Stout's Estate,151 Or. 411, 417, 50 P.2d 768, 101 A.L.R. 672, and Oregon cases there cited. And, hence, when the case is brought here and the correctness of the trial court's decision is questioned, our sole function is to determine whether or not there is any competent, substantial evidence in the record supporting the findings of the court below. See Franklin v. Northrup, 107 Or. 537, 551,215 P. 494; Bannon v. Thompson, 136 Or. 311, 313, 298 P. 907.

When one performs services for another at the latter's request, the question whether a contract to pay the reasonable value of such services will be implied, is one of fact and not of law. Professor Williston says:

"An offer need not be stated in words. Any conduct from which a reasonable person in the offeree's position would be justified in inferring a promise in return for a requested act or a requested promise by the offeree amounts to an offer. The common illustration of this principle is where performance of work or services is requested. If the request is for performance as a favor, no offer to contract is made, and performance of the work or services will not create a contract; but if the request is made under such circumstances that a reasonable person would infer an intent to pay for them (and this is always a question of fact under all the circumstances of the case) the request amounts to an offer, and a contract is created by the performance of the work. And even though no request is made for the performance of work or service, if it is known that it is being rendered with the expectation of pay, the person benefited is liable. It is a question of fact if services are accepted whether a reasonable man in the position of the parties would understand that they are offered in return for a fair compensation, or would rather suppose either that they are offered gratuitously, or if not, that the recipient might think so. It is customary to lay down presumptions, as that ``with respect to strangers a contract for compensation will be implied unless a contrary situation is exhibited,' whereas as between relatives ``a contract alleged to exist must be affirmatively shown.' But it is undesirable to lay too much stress on such presumptions. They are mere inferences of fact. Intimate friends sometimes render services gratuitously, and how close must relationship be to make one presumption or another applicable? The question is purely one of fact, varying in every case, but with the burden always on the party, who alleges a contract and seeks to enforce it, to prove its existence." I Williston on Contracts, Rev. Ed. 93, § 36.

In harmony with the principles thus enunciated it was held inFranklin v. Northrup, supra, that it was for the trial judge to determine as a question of fact whether the claimant rendered services to a decedent without expectation of compensation or with the understanding between the parties that they should be rendered gratuitously.

Even under the rule stated in Ingram v. Basye, 67 Or. 257,260, 135 P. 883, that "with respect to strangers a contract for compensation will be implied unless a contrary situation is exhibited, the burden thereof being on the beneficiary of the services", the result here is the same, because the evidence as to the relations which existed between the parties and the claimant's position in the decedent's household, together with the other facts and circumstances disclosed by the record, affords a sufficient basis for a finding adverse to the claim. This is not to say that the case is governed by the "family relation" doctrine under which the claimant could recover only by proving an express contract for compensation (Franklin v. Northrup, 107 Or. 550), but only that the whole question is at large as one of fact, the weight of opposing inferences being for the determination of the trial judge. See In re Estate of Frank Dvorak, 213 Iowa 250,236 N.W. 66, and Lauf v. Wiegersen, (Mo.App.), 297 S.W. 79. It would not have been unreasonable for the court to find, under the facts in evidence, that the services were rendered without expectation of payment; or, that it was the understanding on both sides that the substantial benefits in the way of board and lodging received by the claimant were to constitute the entire remuneration for the services: Disbrow v. Durand, 54 N.J.L. 343, 24 A. 545, 33 Am. St. Rep. 678; Williams v. Hutchinson, 3 N.Y. 312, 53 Am. Dec. 301; 11 L.R.A. (N.S.) 879, Note.

As to the payments alleged to have been made by the claimant on behalf of the decedent, the case fails because there was no adequate corroboration of the claimant's testimony, as required by § 11-504, Oregon Code 1930.

For the reasons given the judgment is affirmed.

RAND, C.J., and BELT and BAILEY, JJ., concur.