Niswonger v. Burton , 250 Ky. 13 ( 1933 )

Reversing.

I.H. Burton and J.J. Burton were brothers. Beatrice Burton was the wife of J.J. Burton. Hattie Burton was the wife of I.H. Burton. The latter couple were divorced four or five years before the happening of the transactions under review. I.H. Burton made his home with J.J. and Beatrice Burton, except when away on visits. His wife made her home in the state of Ohio. I.H. Burton was tubercular, and in the months of December, 1928, January, February, July, August, September, and October, November, and December of 1929, he was sick, and required more or less attention and nursing. Some time in July, 1929, he was confined to the hospital where one of his eyes was removed, when he returned to the home of J.J. Burton. Some time near the 1st of December, 1929, by an arrangement between J.J. Burton, Beatrice Burton, and Hattie Burton, Hattie returned to the home of J.J. Burton when she and I.H. Burton, with the assistance of Beatrice Burton, rented a house and began to occupy it as their home and continued to reside there until his death during the month of December, 1929.

Velda Burton Niswonger, a daughter of I.H. Burton, qualified as administratrix of his estate. Beatrice Burton prepared, verified, and presented, with supporting affidavit, a claim for services in caring for, waiting on, nursing, and attending I.H. Burton for a period of 210 days at the rate of $4 per day, aggregating $840. A judgment in her favor was rendered for 210 days' services at $2.50 per day. The administratrix and Hattie Burton appeal.

The determinant question is one of fact. The evidence in behalf of Beatrice Burton abundantly shows the extent and nature of the services rendered by her for I.H. Burton, and that they were menial and extraordinary, and I.H. Burton was helpless and required them. That on behalf of the administratrix shows the health and condition of I.H. Burton did not require, and he did not receive, the services of the nature and to the extent claimed by Beatrice. Notwithstanding Hattie and I.H. Burton were divorced and did not reside with each other, their relations were agreeable and cordial, each of them manifesting an interest in the other.

In August, 1929, shortly after I.H. Burton's eye was removed, I.H. Burton, J.J. Burton, Beatrice and Hattie Burton were at the home of Howard Henry in Marion, Ky. Mrs. Henry was a sister of Hattie Burton. I.H. Burton at that time was able to walk with a cane and to get in and out of a car with the assistance of J.J. Burton. At that time J.J. Burton, Hattie and Beatrice discussed with each other the health and physical condition of I.H. Burton, when Hattie Burton informed them that she would return, care for, and nurse I.H. Burton. They agreed to keep her advised as to his condition, and that she would return and wait on him when she received notice that his condition was such as to require constant attention. They agreed that his health and condition were such at that time that he did not require constant attention or some one to wait on him. It was agreed between them that I.H. Burton had the property with which to pay his way. After this arrangement was completed, Hattie returned to her home in Ohio. On September 10, 1929, a letter was written by Beatrice, signed Mr. and Mrs. J.J. Burton, wherein the condition of I.H. Burton's eye was described. Later a letter was written by Beatrice, signed "Jim," in which it was stated, "I promised you if Iley (I.H. Burton) wanted you we would let you know, and he called for you yesterday, said he wanted to see you. If you can come to see him I think you had better come at once because it seems like he is in as bad shape as a man can be and live. He is getting worse all the time. He is almost past swallowing anything and is weakening fast. * * * He stated he would like for you to stay with him a while, but I don't think it will be long."

On December 3, 1929, another letter was written by Beatrice, signed "Jim"; part of which reads:

"I haven't got anything of his to turn over to you he has got everything hisself in his own name and I don't owe him anything so you see that will be a matter between you and him. you spoke about not having enough money to take care of him and yourself both and said you did not want anything that might be left should you outlive him now we will show you our hearts is right if you take him and take care of him you are the very one to have what might be left and we will try to see you get it of course we want you to use his stuff to take care of him and I suppose he will, now Hattie we will say again if you will take care of him that you are the one to have what is left or who will take care of him is the one to have it. * * *

"Now Hattie it is up to you and Iley what you all do. Beat talked to him about you taking care of him and he said he was willing to live with you and treat you right. He said he would be better satisfied that he wasn't satisfied like he was now you can come if you want to and talk it over with him and fix it up to suit yourself. I have not got anything to do about your all business at all but now I will be plain with you if you dont take care of him Velda wont and it is up to us to take care of him and we told him that we would do the very best for him that we could. While it is awful hard on Beat she is almost broke down now we dont want to deceive nobody we want to tell them in time if there is anything left we are going to expect to have it we cannot afford to go through with all of this and if there might be anything left give it to somebody that did not have any trouble I think we have already have done our part now do you Blaim me? Now I am offering it to you or Velda as far as I am concerned to take it yourself now if you come come at once or let us hear from you as soon as you get this letter.

"Hoping to hear from you soon

"Jim."

In response to this letter Hattie went to the home of J.J. Burton and Beatrice Burton and made preparations for her and I.H. Burton to move and live together, she waiting on and caring for him which she continued to do until his death during that month. At the time she and I.H. Burton were leaving the home of J.J. and Beatrice, they stated to I.H. Burton and Hattie Burton "they made no charges, that Iley (I.H. Burton) didn't owe them anything." Both J.J. Burton and Beatrice Burton stated to I.H. Burton at that time that he (I. H.) did not owe them anything, that they had made no charges against him. Beatrice Burton was permitted to testify in her own behalf. She did not deny these statements were made by her and J.J. Burton to I.H. Burton and Hattie Burton. After they were testified to by Hattie Burton, she offered no evidence in rebuttal, tending to contradict this testimony of Hattie. The services rendered by Beatrice Burton for I.H. Burton were not only unusual and menial, but extraordinary and indispensable to his comfort, health, and enjoyment, and were of that character for which compensation was decreed in Allen et al. v. Smith, 208 Ky. 207,270 S.W. 782; Mark's Adm'r v. Boardman, 89 S.W. 481, 28 Ky. Law Rep. 455, 1 L.R.A. (N.S.) 819; Kellum v. Browning's Adm'r, 231 Ky. 308, 21 S.W.2d 459. Yet Beatrice and Jim Burton were privileged to render them to I.H. Burton free or without charge, and, having declared that they did so, she may not now recant and change her mind and recover therefor of his estate. The testimony, without objections, of neighbors, shows that I.H. Burton stated that Jim Burton owed him, and that was the reason he was living at the home of J.J. Burton. Without giving weight to this character of testimony, viewing the letter written in December, 1929, by Beatrice, signed "Jim," to Hattie Burton, wherein it was stated that, if Hattie Burton came and cared for him, she should be entitled to I.H. Burton's estate, coupled with the fact that, at the time she and I.H. Burton left the home of Beatrice and J.J. Burton in December, 1929, to begin housekeeping to themselves, they declared that they did not charge I.H. Burton for the services now sued for, and that he did not owe them anything, and thus induced Hattie Burton to assume the responsibility to care for I.H. Burton, during the remainder of his life, Beatrice Burton may not now retract her statements and charge the estate. Hattie Burton, after the death of I.H. Burton, purchased his land and accepted deed from his daughter which was set aside by the decree herein. Doubtless she and his daughter relied upon the declarations of Beatrice and Jim Burton that I.H. Burton did not owe them. It would be unfair, after making such declarations, to permit Beatrice to recant or repudiate them and so cause to be set aside the deed to Hattie, and thus collect a claim for her services she declared I.H. Burton did not owe. She had the right and was entitled to rely on the declarations of Beatrice and purchase the land of the deceased from his daughter. Having done so, to permit Beatrice to set it aside through the instrumentality of equity for the payment of services rendered to I.H. Burton which she declared he did not owe, to induce Hattie to take him off her hands and assume the responsibility of caring for and nursing him during the remainder of his life, the continuance of which was uncertain and at that time could not be determined, would be inequitable, not only against Hattie, but the estate of I.H. Burton.

With this view the judgment is reversed and cause remanded for proceedings consistent with this opinion.