In Re Oversmith's Estate , 340 Mich. 104 ( 1954 )

Bushnell, J.

This is an appeal from the denial of Margaret Sutton’s claim against the estate of Bert Oversmith, deceased, for services rendered to him from September, 1938 to November, 1950. The claim was disallowed in the probate court and the order of disallowance was affirmed in the circuit court. A motion for a new trial and a subsequent motion for a partial new trial were denied.

Claimant’s husband, Alfred Sutton, testified that in September of 1938, Oversmith came to the Sutton home and asked Mrs. Sutton if she would take care of his wife, Imogene, who was ill. Mrs. Sutton could not accede to his request and he was urged to look elsewhere. He returned the nest day stating that he could not find anyone. Mrs. Sutton then agreed to go to the Oversmith home and help as best she could while he was looking for someone else. Sutton testified that thereafter his wife worked “full time” for a period of 96 weeks, and subsequently 1 day a week in addition to taking the Oversmith washing home every other week, and that such services continued until September of 1950.

Mrs. Oversmith died in 1940, and in 1944 Sutton’s mother, Myra, became Oversmith’s housekeeper. In .1945, Myra Sutton, claimant’s mother-in-law, married Bert Oversmith.

A Mrs. Hathaway had been employed intermittently at the Oversmith farm as housekeeper, beginning in 1941, and the testimony shows that another housekeeper was also employed for a short time. From June of 1949 until November of 1950, although Mrs. Sutton continued to do some housework and washing for Oversmith, she was a full-time employee (40 hours a week) of the Michigan State Home & Training School at Lapeer.

The “statement and proof of claim” has in it an item for services from “November 1,1948 to November, 1950, three days a week, 104 weeks at $2 per day.” This statement is in direct contradiction to the testimony. Claimant’s witness, Emma Traver, a neighbor, testified that she and her mother took care of Mrs. Oversmith for about a week prior to Mrs. Sutton’s arrival, and that she had seen Mrs. Sutton several times at the Oversmith farm. Upon cross-examination, however, this witness was unable to verify that Mrs. Sutton was present during the 3 years that Mrs. Hathaway was engaged as a housekeeper.

The trial court, in granting appellee’s motion to dismiss, was of the opinion that Mrs. Sutton had not sustained the burden of proof imposed upon her.

Claims of the character involved here have been sustained upon proof of an implied contract. In re Thompson’s Estate, 297 Mich 479; In re Snow’s Estate, 321 Mich 127; In re Masurkiewics’s Estate, 328 Mich 120; DeCaire v. Bishop’s Estate, 330 Mich 378.

In reviewing the order granting defendant’s motion to dismiss, we have examined the testimony in the light most favorable to claimant. Nevertheless, the credibility of witnesses and the weight to be given their testimony are proper matters for determination by the trier of facts. Where the court sits without a jury, as was the situation here, “we do not reverse unless the evidence clearly preponderates in the opposite direction.” In re Showers’ Estate, 321 Mich 147.

Our view is in accord with the statement of the trial judge, who, in denying claimant’s motion for new trial, said:

“As to the judgment being contrary to law, that part of the claim which is prior to October 26, 1945, is clearly barred by the statute of limitations. In re Thompson’s Estate, 297 Mich 479. In 1945, decedent married the mother (mother-in-law [sic?]) of claimant, and services rendered after this marriage are presumed to be gratuitous and an express contract must be shown. Shippee v. Shippee’s Estate, 255 Mich 35. There was no express contract here. The judgment is not contrary to law.

“The judgment is not contrary to the great weight of evidence. There was no jury, and the court was the trier of the facts, as well as the law. The credibility of the witnesses is decided by the court, and giving claimant’s testimony its most favorable light, she did not sustain the burden of proof the law requires. She made no attempt to collect one item of $2,400 [$2,600 sic?] for over 10 years after it was due, although her family was of very limited financial ability. During the next period of claimed services and up to 1945, decedent had one or more housekeepers in addition to claimant. In 1945 (sic 1949) claimant took steady employment at Lapeer State Home & Training School and has worked there continuously since. These and other factors, not discussed but which appear in the reeord, caused the court to disbelieve claimant.”

We are unable to find that the evidence in the instant case clearly preponderates in the opposite direction. The proofs do not sustain a finding of an implied contract for services rendered. In view of this conclusion, we find no occasion to pass upon the question of the bar to plaintiff’s claim by the statute of limitations.

The judgment of the circuit court is affirmed, with costs to the estate.

Butzel, C. J., and Carr, Boyles, Reid, and Kelly, JJ., concurred with Bushnell, J.