Mattes v. Pinkney

FILES, P. J.

—Defendant executrix appeals from a judgment for plaintiff in an action brought to recover the reasonable value of services rendered prior to decedent’s death.

Charles Fowler died September 27, 1963. Defendant was appointed executrix of his estate valued at $27,000. Plaintiff was not named in the will. Neither plaintiff nor the legatees in the will were, as far as the record- discloses, related to the decedent.

The action was tried before- the- court- sitting - without a jury. The court found that, prior to March' 1962, the decedent was .a. suitor of plaintiff, and during that period plaintiff had performed services for which she did not expect or claim CQiapen

[493]

sation. During March 1962 plaintiff and decedent entered into an' oral agreement whereby plaintiff would render various services such' as cooking, shopping, cleaning, driving an automobile, caring for decedent and accompanying him on social occasions, in return for which decedent would compensate plaintiff by a provision in his will. The decedent failed to make any will thereafter, so that his estate passed under a will executed in 1943. The court found the reasonable value of plaintiff’s services for the 18 months from March 1962 through September 27, 1963, was $200 per month, for a total of $3,600. Judgment was for plaintiff in that amount.

Because of the provisions of Code of Civil Procedure section 1880, subdivision 3, then in effect,

1

plaintiff did not testify concerning the making of the agreement.

Charles Pigge testified that in April 1962 decedent stated that his relationship with plaintiff had changed and that “for Mrs. Mattes [plaintiff] having taken care of him and for taking care of him in the future that he was going to leave her his entire estate.” Pigge further testified that he had'•seen plaintiff drive decedent on a pleasure trip, clean decedent’s apartment and cook decedent’s dinner.

A nurse who cared for decedent in his last illness testified that decedent told her he did not have any relatives to be notified, and he requested her to call plaintiff to the hospital. Decedent also told the nurse that he wished plaintiff to have all his property as plaintiff had taken care of him for a little over two years, cleaning his apartment, cooking his meals, taking him places and helping him take care of his business. The nurse heard decedent instruct plaintiff to go to his apartment, take everything valuable, and destroy the will. He also said he wanted a new will made out so as to pay plaintiff for what she had done.