Opinion
March 6, 1951 —
April 3, 1951.
APPEAL from part of a judgment of the county court of Brown county: ARCHIE McCOMB, Judge. Affirmed.
For the appellant there was a brief by Martin, Clifford, Warne, Duffy Dewane of Green Bay, and oral argument by Gerald F. Clifford.
For the respondent there was a brief by Kaftan, Kaftan Kaftan of Green Bay, and oral argument by J. Robert Kaftan.
In March, 1945, the decedent, John Joseph Del Marcelle, was about eighty years of age. He was a retired businessman, partially crippled, living with his wife in their own home in Green Bay. They had no children. About the middle of March, 1945, decedent was taken to a hospital in Green Bay suffering from what the witnesses referred to as a stroke. On March 30 or 31, 1945, decedent was removed to the home of the claimant, Albert Del Marcelle, a second cousin of the decedent. The decedent and his wife remained in the home of the claimant until the first part of October, 1945. The wife of the decedent was in normal health for a woman slightly under eighty years of age, but the decedent was cared for by the claimant and claimant's wife. During that period the decedent was practically helpless physically. He had to be lifted in and out of bed and carried to and from the bathroom. Claimant purchased a new bed which was occupied by the decedent, installed an additional register in the kitchen to keep the decedent warm, and purchased a wheel chair to transfer the decedent from the bedroom to the kitchen. Within a day or two after decedent and his wife moved to claimant's home, the decedent executed a will containing the following provision:
"An undivided one third of all the rest, residue, and remainder, I give, devise, and bequeath to my cousin, Albert Del Marcelle of Green Bay, Wisconsin. In making this provision I am mindful of the fact that Albert Del Marcelle and his wife, Irene, have been very kind to me during my declining years and at the present time are taking care of me in their home and tending to my wants and furnishing their nursing services to me."
While the decedent and his wife remained at claimant's home decedent regularly paid to claimant the sum of $25 per week. Said payments were for the room, board, and care of the decedent and his wife. During that period the decedent also made gifts to the claimant in the sum of $720. After spending approximately six months in the home of the claimant, the decedent and his wife moved to their own home, where they were cared for during the balance of their lives by a niece of the decedent. Later the decedent' executed another will, in which no provision was made for the claimant.
The decedent died in February, 1949, and thereafter the claimant and his wife each filed a claim against the estate for services rendered and support furnished to the decedent while in their home. Objections were filed to said claims, and after hearing thereon both claims were disallowed. Claimant's wife did not appeal, but the claimant appealed from that part of the judgment entered September 18, 1950, disallowing his claim. Further facts will be stated in the opinion.
The claim of Albert Del Marcelle against the estate was based upon the terms of an express oral agreement alleged to have been made between claimant and decedent while decedent was still in the hospital. Claimant alleged that he agreed to take the decedent and his wife into his home and there care for and maintain them, and that in return the decedent agreed to give to claimant a sum equal to one third of all of the property of which he should die seized. The claimant alleged a breach of the agreement and demanded one third of the net estate of the decedent. The claim also contained the following paragraph:
"In the event the aforesaid contract is held to be void then the claimant demands in the alternative the sum of five thousand and no/100 ($5,000) dollars for care, support, nursing, and maintaining said deceased and his wife, Hortense, and for loss of wages of claimant's wife."
Upon this appeal the claimant contends that the trial court erred in finding the claimant had failed to prove an express contract, in failing to grant judgment on quantum meruit for services rendered, and in excluding certain testimony offered by the claimant upon the trial.
As to the first contention, the court made the following finding of fact:
"21. That no contract, express or implied, for payment of more than twenty-five ($25) dollars per week or by which decedent would leave claimants or either of them any part of his estate was created or existed between or among decedent, his wife, and claimants based upon the fact that decedent and his wife lived at claimants' home and were cared for there."
This was a question of fact to be determined by the court from the evidence. There was sufficient credible evidence in the record to sustain this finding, and it cannot be disturbed.
As to the second contention, the court found that the decedent regularly paid to the claimant the sum of $25 per week and claimant accepted such payments for the room, board, and care of the decedent and his wife. Where a stated sum has been regularly paid for such services during decedent's lifetime, such payments are presumed to have been in full satisfaction thereof unless it is shown that the decedent expressly agreed to make additional payments. Estate of Breitzman, 236 Wis. 96, 294 N.W. 489. This finding is also supported by the evidence and cannot be disturbed.
We have reviewed the claimed errors on the exclusion of testimony offered by the claimant, and can find no reversible error.
By the Court.. — That part of the judgment appealed from is affirmed.