Summary
holding that services rendered gratuitously cannot afterwards be converted into a charge
Summary of this case from Church v. McGeeOpinion
15304
July 29, 1941.
Before OXNER, J., Dorchester County, May 4, 1940. Affirmed.
This is a proceeding in the matter of the estate of Emma C. Limehouse, deceased, wherein W.E. Shuler and other administrators of the estate of the deceased petitioned for the determination of whether a claim of Mrs. Allen T. Stall against the estate should be allowed. The Probate Court passed an order allowing the claim, and this order was affirmed by an order of the Circuit Judge. J.D. Limehouse, individually, and Theodore Limehouse appeal.
The order of the Probate Judge and the order of Judge Oxner, required to be reported, follow:
ORDER OF PROBATE JUDGEThis matter comes before me upon the petition of W.E. Shuler, A.T. Stall and J.D. Limehouse, administrators of the estate of Emma C. Limehouse for the determination of whether or not a certain claim of Mrs. Allen T. Stall against the estate of Emma C. Limehouse should be allowed or disallowed. Upon summons issuing from this Court to all interested parties, including the claimant, a hearing was had on January 3, 1940, before me.
The verified claim filed by Mrs. Allen Stall totals $2,220.00 and consists of three items: The first for $630.00 for twenty-one months' board for Mrs. Emma C. Limehouse, the deceased; the second, $330.00 for eleven months' board for a nurse of Mrs. Limehouse, and third $1,260.00 for nursing and personal services rendered Mrs. Emma C. Limehouse by the claimant over a twenty-one months' period. At the hearing considerable evidence was introduced both for and against the claim, and it is upon the basis of this evidence alone that my decision must depend.
Laying aside for the moment the question of the effect of the relationship of the claimant with the deceased, I think it is clear from the evidence that the claim is proper both in nature and amount. A detailed analysis of the testimony is, in my opinion, unnecessary, it being sufficient for the purposes of this order to state that from that testimony I have arrived at the following findings of fact:
Miss Emma C. Limehouse, the sister of claimant's mother, in October, 1936, requested claimant to take her into her home and care for her. At that time Miss Limehouse, a paralytic since her youth, was an invalid and was unable to move around and do such things as bathe herself without assistance. Prior to the time that Miss Limehouse became completely bedridden, about eleven months before her death, she had to be cared for in the Stall home as an invalid. Throughout that period, Mrs. Stall assisted her daily in moving around the house as from bedroom to dining room, bathed her, dressed her, and looked after all her needs, some very unpleasant. During the last eleven months of Miss Limehouse's stay in the Stall home, claimant's duties were much multiplied. Miss Limehouse during that period was in bed during the entire time and could not help herself at all. Although a practical nurse was called in to help care for Miss Limehouse, the sick lady was in such condition that one person could not care for her. Mrs. Stall assisted throughout the day in giving Miss Limehouse medicine and food (care and persuasion being apparently required in both), in bathing her, in lifting her from bed to toilet, and in changing the bedclothes many times a day — a most unpleasant necessity of Miss Limehouse's paralytic condition. During the nights, the care of the patient devolved almost wholly upon claimant, and most constant attention was required. The constant attendance required by the sick lady naturally prohibited claimant from having any life outside of her home, even sadly disrupted her life with the rest of the family in the home. The nursing and other personal services rendered Miss Limehouse by claimant and the bills that she has rendered for them, based upon a rate of $2.00 a day, is entirely reasonable.
I further find as to the claim for board for Miss Emma C. Limehouse: That Miss Limehouse lived in claimant's home from October, 1936, to July, 1938, and that claimant during that period fully furnished her room, meals and other nourishment, and did her laundry. Special dishes were often demanded by Miss Limehouse and furnished by claimant. The charge of $1.00 a day for this board is entirely reasonable.
I further find as to the claim for board for nurse: That during the last eleven months of Miss Limehouse's life it was necessary that a practical nurse attend her and that the nurse live in the Stall home. Three such nurses attended Miss Limehouse, succeeding each other and for each of them claimant furnished room, board, laundry and transportation. The claim of $1.00 a day for this board is entirely reasonable.
I further find generally: That when Miss Limehouse came to live in claimant's home she expressed a willingness and desire to pay for her care and thereafter repeatedly expressed the intention that the Stalls should be compensated for their services. Although the Stalls received some small gifts from Miss Limehouse, including a second-hand radio and a small heater to heat the room in which Miss Limehouse slept, and were brought some little produce from a farm in which Miss Limehouse had a life estate, there was no intention made apparent that she was applying these minor commodities on the compensation due claimant. None of Miss Limehouse's other relatives contributed to her support or assisted in any substantial way in her care.
It should be pointed out in connection with my findings that the charges made by claimant against the estate were reasonable, that both Dr. E.D. Tupper, the attending physician, and Mrs. Minnie Alexander, the practical nurse, testified that the per diem rate used by claimant in the computation of her claim were unusually low and certainly reasonable. Both of these witnesses were in a position to judge the competency of Mrs. Stall's work and both had broad professional experience on which to base their conclusions that the charges were reasonable.
I have found as a fact above that Miss Limehouse when she came to claimant's home and several times thereafter expressed an intention to compensate claimant for her services. It is true that certain testimony as to the expression of this intention by Miss Limehouse was objected to by counsel for certain heirs of the estate on the ground that its admission violated Section 692 of the 1932 Code. However, counsel did not object to the testimony of Mrs. Stall and of Mrs. Alexander as to statements of Miss Limehouse along this line, and the testimony which he did object to, that of Mrs. Whaley and Mr. D.R. Allen, was testimony of witnesses who were neither parties to the suit nor had any interest in the outcome of the action so as to come within the class of witnesses whose testimony was prohibited by Section 692. However, even were there no testimony of what Miss Limehouse stated her intentions were as to paying Mrs. Stall, I would be constrained to hold that under the other evidence the circumstances in this case are such as to show an intention on the part of both parties that the services be paid for. See Gaston v. Gaston, 80 S.C. 157, 61 S.E. 393, and Kaminer v. Kaigler, 113 S.C. 222, 102 S.E. 20.
The administrators take the position that no matter how proper the present claim might be were it filed by a person not related to Miss Limehouse, Mrs. Stall is barred from recovery by the fact that she was Miss Limehouse's niece and that the presumption is that the services and board were rendered by her gratuitously.
The law as to the presumptions which arise in cases of this kind is perhaps better stated in the case of Jones v. Jones, 129 S.C. 8, 123 S.E. 763, 764, than in any other decision, the Court there saying: "The applicable principles are clearly and justly settled by the decisions of this court. The main inquiry is whether or not the services were rendered gratuitously; for, if so, they cannot afterwards be converted into a charge. Upon this issue certain presumptions which control the burden of proof enter. If the relation between the two parties was such as to have created a moral or legal obligation upon the claimant to render the service in question, the presumption is that it was rendered in response to such obligation, without thought of compensation. The burden is then upon the claimant to remove this presumption, which he may do by evidence that the service was intended to be compensated for, and, if so, he may recover accordingly. If no such relation existed, the presumption follows the usual course that one who receives the benefit of another's service is under an implied obligation to compensate him therefor. The burden is then upon the administrator to remove this presumption, which he may do by evidence that the service was intended to be rendered gratuitously, and, if so, the claim will be denied." (Citing numerous cases.)
I do not believe under the law that the relation of aunt and niece, of itself, is such a relationship as necessarily raises a presumption that services rendered to the aunt by the niece were rendered gratuitously. From 28 R.C.L. 682, Section 17: "The general principle is not disputed, that the presumption of an intention not to demand pecuniary compensation for services rendered is stronger or weaker according to the proximity or remoteness of the relationship. In the practical application of this principle, the Courts have proceeded on the theory that, in any case where a relationship more remote than that of parent and child is involved, something more than the relationship itself must be shown in order to overcome the effect of the primary implication that a person who accepts valuable services does so on the understanding that they are to be paid for. Accordingly some Courts have categorically ruled that a blood relationship more remote than that of parent and child is not sufficient of itself to rebut the implication of a promise to pay. However, a more common illustration of the principle is found in the cases holding that no presumption unfavorable to the claim will be entertained unless it appears that at the time the services were rendered the claimant was living as a member of the family of the other party."
The case might be different where the aunt and niece were originally members of the same household, but where, as here, they had lived in separate domestic establishments, and the aunt had moved in only at the time the services began to be rendered, there should be no presumption of gratuitous services.
See the following authorities upon the effect of the relationship of aunt and niece, or uncle and nephew: Ruling Case Law, Volume 28, p. 683, Section 18; Glenn v. Gerald, 64 S.C. 236, 42 S.E. 155, and In re Turner's Estate, 118 S.C. 30, 109 S.E. 806.
However, even were there originally the presumption here that the services of claimant to Miss Limehouse were rendered gratuitously, I am of the opinion that such presumption would be sufficiently rebutted by the evidence that Miss Limehouse manifested, clearly and before several witnesses, an intention to compensate her niece for her services. The cases hold that it is not necessary that there be an actual contract to pay for such services if the circumstances of the case are such as to show an intention on the part of both parties that the services be paid for. Gaston v. Gaston, 80 S.C. 157, 61 S.E. 393; Kaminer v. Kaigler, 113 S.C. 222, 102 S.E. 20; In re Nightingale Estate, 182 S.C. 527, 189 S.E. 890; 28 R.C.L. 686.
Claimant then, not being barred from recovery because of her relationship, with the deceased, must be paid the amount of her claim which is in all respects just and reasonable, and it is therefore ordered: That the claim as filed herein by Mrs. Allen Stall in the amount of $2,220.00 be and the same is hereby approved by this Court and the administrators are ordered to pay the same forthwith.
ORDER OF JUDGE OXNERMrs. Allen Stall, a niece of the deceased, Emma C. Limehouse, filed a claim against the estate in the Probate Court in the sum of $2,220.00. The claim consists of three items, namely: Board and laundry furnished to the deceased from October, 1936, to July, 1938, at $30.00 per month, $630.00 Board for nurses who attended the deceased for eleven months, at $30.00 per month, $330.00. Services consisting of nursing the deceased for twenty-one months, at $60.00 per month amounting to $1,260.00.
Testimony was taken before the Probate Judge, who filed a report finding in favor of the claimant for the full amount of the claim. The matter now comes before me on exceptions by certain of the heirs at law to the report of the Probate Judge. None of the exceptions question the amount allowed for the alleged services, if the Court finds that they should be compensated. In oral argument counsel stated that no question was raised as to the value of the services as fixed by the Probate Judge. The exceptions are directed solely to the question as to whether or not any amount should be allowed. The Probate Judge in his report makes an excellent review of the evidence and the applicable principles of law, and I do not think it necessary to lengthen this order with a full review of the evidence. However, for a clearer understanding of the issues involved, a brief review of some of the facts is not amiss.
The deceased, Emma C. Limehouse, and her sister, Miss Fannie Limehouse, in October, 1936, moved into the home of their niece, the claimant. At that time Miss Emma Limehouse was an invalid, having suffered from paralysis for a number of years. Miss Fannie Limehouse was also unwell. The two sisters had always lived together. Within a week after the two sisters came to the home of the claimant, Miss Fannie died, leaving Miss Emma at the home of the claimant with no one to take care of her. Miss Emma Limehouse had some half brothers and sisters but apparently none of them was so situated as to be able to take care of her. The deceased remained in the home of the claimant for one year and nine months, namely, from October, 1936, to July, 1938. She was unable to take care of herself from the time she came, but during the last eleven months of her life she was completely bed-ridden, requiring constant attention. During this period of eleven months, the services of several nurses were required, but according to the testimony, the claimant had to give up her usual duties and devote her entire time to taking care of and ministering to the deceased. The Probate Judge carefully reviews the nature of the services rendered by the claimant and the testimony abundantly sustains his findings.
The major portion of the exceptions are to the effect that the circumstances and relationship between the parties was such that there was a presumption that the services for which compensation is sought were rendered voluntarily and gratuitously, and that such services so rendered can not now be converted into a charge. It is insisted that there are no circumstances in the record to rebut this presumption. It is well settled in this State that if the relation was such as to have created a moral or legal obligation upon the claimant to render the services in question, the presumption is that such service was rendered in response to such obligation, without thought of compensation. If no such relation existed, the presumption follows the usual course that one who receives the benefit of another's service is under an implied obligation to compensate him therefor. Jones v. Jones, 129 S.C. 8, 123 S.E. 763. It is further well established that in determining whether or not the service is to be regarded as gratuitous, the nature of the service is an important factor. Wessinger v. Roberts, 67 S.C. 240, 45 S.E. 169. The last named case further establishes the principle that intention to pay any legal obligation need not be proved by an express promise but may be gathered from all the circumstances and what the parties said and did in respect to their relations to each other.
The Courts in other jurisdictions apparently hold that the relation of aunt and niece in itself, unaccompanied by other circumstances, is insufficient to raise the presumption. For an excellent discussion when the relationship is that of aunt and niece, see the case of Tatum v. Moss, 58 Ga. App. 434, 198 S.E. 814.
The authorities in this State are not clear as to whether the relation itself raises such presumption. In the case of Glenn v. Gerald, 64 S.C. 236, 42 S.E. 155, 157, a nephew was allowed to recover for board, nursing and other services furnished his aunt. The Court in that case intimated that the relation was not such as to raise a presumption that the services were gratuitous. The Court said: "A nephew in blood does not owe such a duty to his aunt." However, in the subsequent case of Ex Parte Bomar, 134 S.C. 42, 131 S.E. 771, there is an intimation that such relation does raise the presumption. In fact, the Circuit Court so held. The opinion of the Supreme Court seems to be upon the theory in that case that the Probate Judge and Circuit Court having found against the claimant, the circumstances were not such as to warrant the Supreme Court in disturbing the finding. Also, see Fairey v. Hildebrand, 159 S.C. 515, 157 S.E. 841. So I think it may be fairly stated that the authorities in this State are not clear upon the question of presumption in this case.
The case of Glenn v. Gerald, supra, is in many respects very similar to the instant case. Also, Fairey v. Hildebrand, supra. Counsel for the objecting heirs rely strongly upon the case of Sullivan v. Latimer, 38 S.C. 158, 17 S.E. 701. It will be observed, however, that the Court in that case allowed Dr. Latimer compensation for medical services rendered to his uncle, but did disallow the board bill. That case, I think, is authority for the allowance in this instant case of the claim for nursing. The claim for board in the Latimer case is somewhat different from the facts here presented in that the deceased in that case had made numerous gifts shortly before he died to the claimants.
I agree with the Probate Judge that if the relation between the parties created the presumption, when the nature of the services is considered, the circumstances under which the deceased came to the home of the claimant, the statements made by the deceased to other parties, and all the other circumstances disclosed by the evidence, that there was testimony sufficient to have warranted the Probate Judge in allowing the claim.
Certainly there is no presumption that the board given to the nurses of the deceased was gratuitous. Certainly it could not have been the intention of the parties that this niece was to devote her whole time to the unpleasant task of nursing her aunt without compensation.
As stated above, the exceptions are directed to the entire claim and not to the allowance of any portion thereof.
It appears that claimant was permitted without objection to testify to the agreement on the part of her aunt that the claimant would be compensated for her services. Subsequently, when disinterested parties undertook to testify as to a conversation had with the deceased, objection was made under Section 692 of the Code. The testimony objected to was clearly competent. Of course, the conversation which claimant had with her aunt was incompetent, but was taken entirely without objection. The objection seems to be upon the theory that any conversation which anyone had with deceased was incompetent under Section 692 of the Code. Of course, this is incorrect. No motion was made to strike, but counsel did ask the Probate Judge to allow this objection to run to all prior testimony. The Probate Judge apparently took the view that the objection came too late. Even though a motion had been made to strike, such motion would have been within the discretion of the Probate Judge. Fabian v. Rephan, 192 S.C. 483, 7 S.E.2d 223, and I am inclined to agree with the Probate Judge that counsel should have made his objection within due time and not waited until most of the testimony was taken. But if such testimony be disregarded, there is ample evidence to sustain the conclusions of the Probate Judge.
It is not a prerequisite to the allowance of a claim of this kind that demand be made for payment upon the deceased during her lifetime. Exception 8 is overruled. Nor was it necessary for claimant to have paid herself out of the funds which she had on hand. In fact, her failure to do so is commendable. The conduct of the claimant throughout has impressed this Court. Approximately one thousand dollars was in the name of claimant's husband in the Post Office and approximately five hundred dollars in the depository in the name of claimant. Claimant and her husband kept this money intact and instead of being penalized for doing so, their conduct is to be commended.
I have carefully considered all exceptions and they are hereby overruled. I am in full accord with the conclusions reached by the Probate Judge. His finding of facts are affirmed.
It is therefore ordered: That the claim as fixed by the Probate Judge be allowed as a valid claim against the estate.
Messrs. Walker, Walker Jenkins, of Summerville, and Mr. John Wilson Patrick, of St. George, for appellants, cite: As to presumption of gratuitous services: 38 S.C. 158; 17 S.E. 701; 134 S.C. 42; 131 S.E. 771; C.J., Vol. 24, p. 279; 67 S.C. 255; 47 S.E. 169; 34 S.C. 55; 13 S.E. 450; R.C.L., Vol. 28, p. 684; 11 L.R.A. (N.S.), 889; 64 S.C. 236; 42 S.E. 155; 17 Am. Eng. Cyc. of Law, 337; 34 S.C. 255; 13 S.E. 450; 110 Penn St., 568.
Mr. J.D. Parler, of St. George, and Messrs. Robinson Robinson, of Columbia, for respondents, cite: As to presumption of gratuitous services: 38 S.C. 158; 17 S.E. 701; 64 S.C. 236; 42 S.E. 155; 134 S.C. 42; 131 S.E. 771; 159 S.C. 515; 157 S.E. 881; 198 S.E. 814; 129 S.C. 8; 123 S.E. 763; 67 S.C. 240; 45 S.E. 169; 34 S.C. 255; 13 S.E. 450; 80 S.C. 157; 61 S.E. 393; 67 S.C. 240, 245; 45 S.E. 171; 113 S.C. 222; 102 S.E. 20; 20 R.C.L. 686; 182 S.C. 527; 189 S.E. 890.
July 29, 1941. The opinion of the Court was delivered by
The respondent filed in the Probate Court a claim against the Estate of Emma C. Limehouse, deceased, for services rendered the deceased in her lifetime. The administrators of the Estate of Emma C. Limehouse filed with the Judge of Probate a petition that they were advised that because of the relationship existing between the parties, a presumption of law arose that the services rendered decedent were gratuitous. Hence they desired that the Court inquire into the matter and determine whether the claim should be paid.
The Probate Judge took testimony, heard argument, and filed an able order directing that the claim be paid.
An appeal was taken to the Court of Common Pleas, which was heard by His Honor, Judge Oxner, who filed a decree affirming the judgment of the Probate Court.
The interesting questions involved in this proceeding are so clearly and ably discussed in the order of the Probate Court, and the decree of the Circuit Judge affirming it, we think it is best for a clear understanding of the whole matter that both of them be reported.
Judge Oxner, in his decree, says: "The authorities in this State are not clear as to whether the relationship itself (of aunt and niece) raises such presumption." We do not think the decision in this case finally decides that issue. But we agree that in the light of the evidence in this case, it has been correctly decided.
In the case of Fairey et al. v. Hildebrand, 159 S.C. 515, 157 S.E. 841, 842, Mr. Chief Justice Blease said: "It is well established that in a law case this Court will not disturb findings of fact of the Probate Court, concurred in by the Circuit Court, when there is any evidence to support such findings. * * *"
For the same reason, we affirm the order of the Circuit Court which affirms the order of the Probate Court.
MESSRS. JUSTICES BAKER, FISHBURNE, and STUKES, and MR. ACTING ASSOCIATE JUSTICE L.D. LIDE concur.