Williams v. McHugh

VAN DYKE, P. J.

Respondent brought action against the appellant as executor of the will of Mary Kipling Farrington on a rejected claim for the reasonable value of personal services alleged to have been performed by her for the testatrix pursuant to an oral agreement that in compensation therefor the testatrix would devise to her by will property consisting of a small residence. The complaint alleged the foregoing and that the services had been rendered as agreed, but decedent had failed to carry out her part of the contract.

The case was tried to the court sitting without a jury and judgment was rendered in favor of plaintiff in the sum of $5,850, payable from decedent’s estate in due course of administration. The appeal is from this judgment and for reversal appellant claims insufficiency of the evidence and error in disallowing his defense of the statute of limitations as to any services rendered more than two years immediately preceding the death of the testatrix.

Decedent owned three houses in Stockton, California, one of which was next door to her home in which she lived alone. Respondent moved into this house and occupied it for about five years before the death of the testatrix, paying cash rental therefor at all times. Respondent and her husband were not permitted to testify as to facts and circumstances occurring prior to the death of decedent and respondent was thus compelled to rely upon testimony of persons not parties to the action. There was testimony of neighbors and friends that from 1946 until her death decedent suffered intermittent illnesses, was, generally speaking, in poor health, was occasionally bedridden, and that during the

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period from that date until her death they saw respondent performing errands and household tasks for decedent, including preparation of food and the performance of services, usually done by domestic help. Their observations were made on visits in varying degrees of frequency and while they observed the respondent performing services they were, of course, unable to testify that her services were continuous. As to the agreement to compensate respondent in the manner alleged, there was ample evidence. Witnesses testified to repeated declarations by decedent made to them that she was going to leave the respondent the house in which she was living in order to compensate her for the services she was rendering and that the decedent was not paying her as the services were rendered. One witness stated that decedent said over and over again that she was not paying the respondent as the services were rendered, but would leave her the house for that purpose.