Seib v. Mitchell

WOOD, J.

These actions were commenced against the executor of the will of Elizabeth J. Herbst, after rejection by

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the executor of claims presented in the probate proceedings. John O. Seib and Etta B. Seib are husband and wife and Mrs. Seib was the niece of Mrs. Herbst. It is set forth in Mrs. Seib’s complaint that in April, 1917, Mrs. Herbst requested her to render services continuously during such part of the remainder of Mrs. Herbst's life as she might require, and that Mrs. Herbst agreed to pay plaintiff at the time of her death by bequeathing to her and her husband all or practically all of her estate or a sum equal to the reasonable value of plaintiffs’ services; that Mrs. Seib’s services were rendered whenever desired by Mrs. Herbst between April 11, 1917, and the date of Mrs. Herbst’s death, which occurred October 28, 1932. The complaint sets forth a second cause of action in which it is alleged that the decedent became indebted to plaintiff for services rendered and performed at the special instance and request of defendant. The complaint of John C. Seib is similar to that of his wife except that the services rendered were of a different nature and Mr. Seib’s complaint contains various allegations of money due for certain expenditures made by him. Mrs. Herbst did not compensate plaintiffs during her lifetime nor did she leave her property to them in her will. The principles of law governing the two actions are the same and have been treated as such in the briefs of the parties.

The trial court found that the services were performed as alleged and that “it was the understanding and agreement by and between the plaintiff and the said Elizabeth J. Herbst that plaintiff would perform the said services continuously during such part of the remainder of the lifetime of the said Elizabeth J. Herbst as the said Elizabeth J. Herbst would pay to the plaintiff for the same in money or property to the amount of the reasonable value of said services, upon the termination of said services, at or before her death”; that the services were not terminated before the death of Mrs. Herbst, and that the services were rendered to Mrs. Herbst whenever she desired such services between April 11, 1917, and the date of her death. The court further found that on a number of occasions, some of which were for extended periods, plaintiff did not render services to Mrs. Herbst but that “such cessation of services was without fault on the part of the plaintiff and was caused by the wrongful temporary discharge by the deceased”.