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Patrick v. Howard

October 26, 1951



MORRIS, Commissioner. Appellees, Charley Howard and Pearl, his wife, recovered a judgment against appellant, administratrix, for services rendered W. B. Craft during the last four years of his life. Mr. Craft died at the home of appellees in November, 1947, at the age of ninety-two. His estate mainly consisted of a small tract of land. Mrs. Patrick and Pearl Howard are daughters of decedent.

Following qualification of appellant as administratrix, Charley presented a claim for $2,730.99; of this total $2,500 was for food, clothing, nursing and caring for decedent for fifty months at $50 per month; $221.99 for burial expenses of decedent, and $9 taxes on decedent's real estate, paid by claimant.

The claim was rejected; later a petition in equity was filed setting out the foregoing facts, and alleging that during the last four years of his life, decedent was feeble and in such poor health as to require much attention and nursing; that decedent 'employed the plaintiff to take care of him and agreed to pay him a reasonable amount for his services in taking care of and providing for him during his declining years, and that the plaintiff at the request of the decedent provided food, clothing and nursing for him until his death, covering a period of four years; that the services were reasonably worth $50 per month.' Prayer was for judgment and settlement of the estate.

Appellant demurred and filed affidavit stating that no properly verified claim had been presented, and asked for rule to require proper verification and, upon failure, to dismiss the petition. The court overruled the demurrer, but at no time ruled on the motion, which was apparently waived.

Appellant's answer was merely a general denial of the allegations of the petition, except as to her qualifications as administratrix. The action was made by agreement transferred to the ordinary docket for trial before a jury. The trial resulted in a verdict for appellees, allowing $35 per month for services, the funeral expenses and the tax items, subject to a credit of $150. Judgment was entered in accordance for a total of $1,908.91. Motion for a new trial was overruled and appeal granted.

Appellant contends that the judgment should be reversed (1) because the verdict is not supported by sufficient evidence; (2) that to entitle appellees to recover, an express contract must be clearly proven, since the services rendered decedent were rendered by close relative, the presumption therefore arises that the rendition was gratuitous, or that the living together as one family was to the mutual benefit of the parties.

Counsel for appellant cites numerous opinions of this court thoroughly establishing the foregoing principles, but they are not applicable to the case presented. Counsel's conclusions are based on the contention that the proof did not show an express contract, and refers to cases in which recovery was sought for services rendered under vague or uncertain promises, or hopes for or expectation of remuneration.

There was produced in evidence and exhibited this writing:

'Lakeville, Kentucky,

October 10, 1943

'This is to certify that I, Wm. Craft, do hereby agree for Charles Howard and wife, Pearl Howard, to have reasonable pay which is to be paid out of my estate if they should be living at my death, from the time I started staying with them, which was in July 21, 1943.

Wm. B. Craft.'

Counsel contends that if this paper manifests an express contract, the proof showed that the signature was forged. Lastly, it is argued that appellant's motion for a directed verdict should have been sustained, (1) because of lack of proof of express contract and (2) because no claim was presented which met the requirements of KRS 396.010-396.020. It is also contended that Mr. Craft was incompetent to execute a binding obligation.

We shall take up first the questions of forgery and incompetency. Appellant and several other witnesses, including a banker, were shown the original of the writing, and made comparison with other writings signed by decedent. Expressing familiarity with Mr. Craft's signature, they all found some differences, principally in certain letters employed in the various writings; none were at all positive in their conclusions and the most that can be gathered from their testimony is that the signature did not 'look like' Mr. Craft's handwriting. The banker found some differences in the various signatures and in the form of the letters, but concluded that he 'could not say whether or not the writing in question ...

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