Gough v. Security Trust & Savings Bank

McCABE, J. pro tem.

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Plaintiff appeals from the judgment of dismissal entered after the granting of a motion for nonsuit.

By the first cause of action plaintiff seeks to recover from the estate of decedent upon quantum

meruit

for services rendered. The second cause of action alleges an oral agree

[92]

ment whereby plaintiff agreed to render services for decedent and she agreed to leave a will giving property to plaintiff to compensate him for the services.

Decedent, a widow, was approximately 85 years of age at the time of her death on October 1, 1956. Plaintiff, a nephew by marriage, had known decedent for about 19 years prior to her death. During the period from May, 1947, to October 1, 1956, plaintiff had been continually and gainfully employed by a ferry boat company. Decedent lived in her own home. Plaintiff lived at his own home. Plaintiff and decedent were friends and frequently visited in each other’s home. Prom 1947 to October 1, 1956, plaintiff trimmed the hedges, cut the lawn, did some plumbing, carried out the trash and did household jobs at decedent’s home.

Defendant as executor of the estate at the trial invoked the prohibition set forth in section 1880, subdivision 3, Code of Civil Procedure, which provides as follows:

“The following persons cannot be witnesses:

“3. Parties or assignors of parties to an action or proceeding, or persons in whose behalf an action or proceeding is prosecuted, against an executor or administrator upon a claim or demand against the estate of a deceased person, as to any matter or fact occurring before the death of such deceased person.”

Most of the testimony adduced at the trial came from witnesses not precluded from testifying by the provisions of this section. The attorney who in December, 1955, prepared a will for decedent, testified to a copy of the will and such copy was admitted into evidence. By the terms of that will decedent bequeathed some shares of stock to plaintiff, provided that he was to be the residuary beneficiary, and appointed him executor. As late as September, 1956, decedent told plaintiff and others that she had not changed her will “and that he would get well paid for what he has done, for him not to worry about it.” Similar statements were made by decedent during the years immediately prior to her death. Obviously) the December, 1955, will was revoked and another will under which defendant bank was appointed executor was admitted to probate. The date and provisions of the will admitted to probate and under which defendant was appointed executor do not appear in the record but we may assume that the provisions of the will are not favorable to plaintiff.