Giles v. Reed

SHAW, J.

Plaintiff appeals from a judgment in favor of defendant, rendered upon the granting of his motion for a nonsuit. The action is based upon a claim presented to defendant as administrator of the estate of Rhoda A. Loud, deceased, which was by him rejected. As presented, the claim is as follows:

“Estate of Rhoda A. Loud, Deceased.

“To Libbie Giles, Dr.

“To services rendered by claimant to said deceased as housekeeper, companion, nurse, etc., under and by virtue of a contract with said deceased whereby she agreed in consideration of the rendition of such services to make a will in favor of claimant leaving and devising her property situate in the County of San Diego, State of California, described as lot thirty-three and the south one-half of lot thirty-four of block One Hundred Eighty-four of University Heights according to the official map thereof on file in the

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office of the County Recorder of said County; together with the buildings upon said above described property, and the furnishings and household furniture and other personal property of said deceased in said building, $3073.82,” to which was attached an affidavit that the amount thereof was justly due and no part thereof had been paid.

It is alleged in the complaint that the contract, made in April, 1915, pursuant to which the services were rendered, was oral, and that plaintiff complied with her part thereof and rendered personal services to deceased, the reasonable value of which was the sum of $3,073.82; that deceased died without devising the said real property to plaintiff in accordance with said agreement or otherwise making any provision for the payment to plaintiff of the amount claimed.

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The chief error urged by appellant is predicated upon the ruling of the court in sustaining defendant’s objections to questions whereby it was sought to elicit testimony tending to prove that deceased in her lifetime orally agreed with plaintiff, for the consideration named, to make a will devising to her the real estate described in the complaint. That the alleged contract was invalid by reason of there being no note or memorandum thereof in writing and subscribed by deceased, admits of no question (subd. 7, see. 1624, Civ. Code); hence there was no error in the ruling.