Opinion
13097
March 23, 1931.
Before SEASE, J., Orangeburg, May, 1930. Affirmed.
Proceedings for the allowance of claim of Ella A. Fairey and others against estate of Ida Zimmerman, deceased. Judgment of the Probate Court allowing the claim was affirmed by the Court of Common Pleas and A.H. Hildebrand as administrator appeals.
Following is the decree of the Circuit Judge:
This is an appeal from the Probate Court of Orangeburg County to the Court of Common Pleas from a judgment of the lower Court allowing a claim filed against the administrator of the estate of Miss Ida Zimmerman, deceased.
Miss Ida Zimmerman was a maiden lady about fifty-five years old when she died intestate. She left an estate consisting of cash, bonds, and property appraised at about fifty thousand dollars.
She left as her sole heir at law her half-sister, Mrs. Cornelia Hildebrand.
Her next of kindred were her aunt, Mrs. J.J. Fairey, and her first cousins, the children of Mrs. Fairey.
About four years prior to her death Miss Zimmerman, being left alone in the county by the death of her mother, moved to Orangeburg to board with her uncle-in-law, the late Capt. J.J. Fairey. He built several additional rooms on to his house for her accommodation and he charged and she paid the sum of $20 per month to him as long as she lived with him for her board. She predeceased him by a few months.
Her health was frail and she had large business interests to attend.
Her two cousins, Misses Marie Fairey and Fannie Fairey, themselves maiden ladies living with their father, together with Mrs. J.J. Fairey, the mother, assisted Miss Zimmerman in many ways and rendered her various services.
They carried her to and fro in their automobile to church (being members of churches of different denominations); carried her to the country and about in town to attend her business affairs; carried her to the doctor's office and assisted in treating her; prepared special diets for her; nursed her at home, and at her special request one of them went to the hospital and stayed with her while she was being treated for cancer; looked after or assisted her in looking after many business matters; and rendered her many services during nearly four years while she boarded with them and until she died.
While it is true that she lived with them and was treated as a member of the family, yet, as a matter of fact, she was a boarder in their home. She lived in the house under an express contract as a boarder. She was wealthy and in no wise in need of charity or any gratuity.
When the relationship of the parties is such as to create a moral or legal obligation to serve or support, then any services rendered are presumed to have been gratuitous; and "the burden is then upon the claimant to remove this presumption, which he may do by evidence that the service was intended to be compensated for, and, if so, he may recover accordingly. If no such relation existed, the presumption follows the usual course that one who receives the benefit of another's service is under an implied obligation to compensate him therefor. The burden is then upon the administrator to remove this presumption, which he may do by evidence that the service was intended to be rendered gratuitously, and, if so, the claim will be denied." Jones v. Jones, 129 S.C. 11, 123 S.E., 763, 764.
And many cases and authorities there cited.
What difference is there between a "moral" and a "legal" obligation to serve?
There is a legal obligation upon the husband to support his wife and upon the parent to support his child.
Then, as an example, there is undoubtedly a moral obligation upon the child to serve and support the parent. Kaminer v. Kaigler, 113 S.C. 224, 102 S.E., 20; Dash v. Inabinet, 53 S.C. 382, 31 S.E., 297.
However, there is a distinction to be drawn between a moral obligation and a moral duty to serve or aid, as is pointed out by Mr. Associate Justice Gage at page 225 of 113 S.C. 102 S.E., 20, in the case of Kaminer v. Kaigler, supra.
When the Courts deal with the question of moral obligation "the standard of moral duty is to be found in the books of the law rather than in those on moral science." Bishop on Contracts, § 94; Kaminer v. Kaigler, supra.
In passing upon such claims, it is proper to consider the relationship and situation of the parties as well as the circumstances surrounding the transactions. Kaminer v. Kaigler, supra, 40 Cyc., 2821.
There is also a distinction to be made, it seems, between a claim for board and such like services and services of a business or professional nature. Sullivan v. Latimer, 38 S.C. 165-167, 17 S.E., 701.
Applying those general principles of law to the facts and circumstances in this case, can it be said that the claimants were under a legal or moral obligation to render the services upon which their claim is based? We think not.
She requested some of the services and freely accepted the others.
She was amply able to pay for such services.
The services to some extent were promotive of her business interests; and in other instances conducive as well as necessary to her health and happiness.
She was a boarder in the Fairey family and could not expect such services to be given free by her aunt and cousins, who were not under a legal or moral obligation to thus serve her.
The administrator insists that the services, which it is not disputed were rendered, were gratuitous and cannot now be converted into a charge.
It is well settled that services rendered gratuitously cannot afterwards be converted into a charge. Ex parte Aycock 34 S.C. 257, 13 S.E., 450.
"* * * The question whether or not it was rendered as a gratuity, which would exclude the right to compensation, was a question of fact" for the jury, but in this case for the Judge of Probate, Jones v. Jones, 129 S.C. 11, 123 S.E., 763, 764.
The Judge of Probate has found, as a matter of fact, that the services were not intended as a gratuity, and there is evidence supporting his findings. He had the witnesses before him and was in a position to properly decide the issues of fact; so, therefore, his conclusions ought not to be disturbed on appeal.
The appellant further complains that incompetent testimony was admitted before the Judge of Probate. The record shows that no objections were interposed to the admission of such testimony. Stark v. Hopson, 22 S.C. 46.
Besides, testimony relative to substantive facts not amounting to a transaction is competent. Foggette v. Gaffney, 33 S.C. 310, 12 S.E., 260.
The claim filed jointly by the claimants was for $10,000.
The Judge of Probate allowed the claim for $1,673, less certain credits.
The appeal should be dismissed, and the judgment affirmed.
Accordingly, it is ordered and adjudged that the appeal be dismissed and the judgment of the Probate Court affirmed.
Messrs. Brantley Zeigler, for appellant: No charge can be made for services intended to be gratuitous when rendered: 2 Bay, 101; 2 Bail., 308. Burden on Claimants to show services were performed under contract: 40 Cyc., 2923; 28 R.C.L., 677; 102 S.E., 20; Character of service is mixed question of law and fact: 38 S.C. 158.
Messrs. Wolfe Wolfe, for respondent, cite: Law case and findings of fact not reviewable: Code Proc. 1922, Sec. 185; 82 S.C. 40; 62 S.E., 254; 13 S.C. 37.
March 23, 1931. The opinion of the Court was delivered by
It is well established that in a law case this Court will not disturb findings of fact of the probate Court, concurred in by the Circuit Court, when there is any evidence to support such findings. It is needless to cite any of the many authorities sustaining this proposition. There was evidence in this case to warrant the findings of fact of the Probate Judge, which were approved, on appeal by the Circuit Judge.
We find no error of law in the holdings of the Circuit Judge. The decree, which will be reported, is affirmed.
MESSRS. JUSTICES COTHRAN, STABLER, CARTER and BONHAM concur.