Opinion
May 31, 1955 —
June 28, 1955.
APPEAL from a judgment of the county court of Crawford county: JAMES P. CULLEN, Judge. Reversed.
For the appellant there was a brief by Bosshard Arneson, attorneys, and Engelhard, Snodgrass Goerdt of counsel, all of La Crosse, and oral argument by George M. Snodgrass.
For the respondent there was a brief by Peterson, Antoine Peterson of Prairie du Chien, and oral argument by F. J. Antoine.
Otis W. Klinger filed a claim February 17, 1954, and an amended claim on June 11, 1954, against the estate of Alfred C. Kandall for payment of a check in the amount of $12,000 for labor. Objections to allowance of the claim and amended claim were made by Richard Kandall, brother and an heir of the deceased. Thereafter formal pleadings were filed in which claimant demanded judgment allowing his claim, together with interest thereon from the date of decedent's death, together with costs and disbursements of the action.
Otis W. Klinger, the claimant, worked for deceased from 1934, excepting for a period from March, 1945, to September, 1946, during which time he was in military service. Decedent was engaged in the service-garage business in Ferryville from 1918 to 1953. Claimant did mechanical work, sold cars, and installed water systems and barn equipment. When he first worked for decedent, claimant was paid at the rate of $2.50 per week. In 1941 he was receiving $15 per week, and in 1945 he was receiving from $20 to $25 per week. Upon his return from the service he was paid one dollar per hour plus commissions on automotive parts. During his period of employment from 1934 to 1953, claimant generally received a raise when he asked for it, and he never, during the lifetime of decedent, demanded payment for his services in addition to what he received.
On December 30, 1953, deceased made a will in which he left a bequest of $5,000 to claimant and gave the remainder to his brothers in equal shares. His estate was appraised at about $70,000. On January 6, 1954, decedent called his attorney, Everett J. Hoch, and requested him to come to the hospital where decedent was confined. On that visit decedent asked Hoch to draw a check for $12,000 payable to Otis Klinger, and instructed him to deliver it to Klinger after decedent's death. On the check Mr. Kandall, decedent, wrote the words "For Labor." Mr. Kandall died on January 22, 1954, at which time the check was in the attorney's possession. Eight or ten days after decedent's death, the attorney presented the check to Klinger in the presence of F. R. Garvey, executor of the estate and cashier of the Ferryville State Bank on which the check was drawn. The attorney and Mr. Garvey advised Klinger that the check would not be honored by the bank, but that a claim would have to be filed against the estate. The claim was filed February 17, 1954.
The county court made, the following findings, among others:
"5. That during the years 1934, 1935, 1936, 1937, 1938, 1939, 1940, 1941, 1942, 1943, 1944, and 1945 up to March, 1945, and during the year 1946 from and after September of that year, and during the years 1947, 1948, 1949, 1950, 1951, 1952, and 1953 up to and including September of 1953, the claimant was an employee of the decedent, Alfred C. Kandall, and did, in connection with decedent's business and occupation, render valuable work, labor, and services at the decedent's request for which he was not adequately compensated.
"6. That on and prior to the 6th day of January, A. D. 1954, the above-named decedent was indebted to the claimant Otis W. Klinger, for said work, labor, and services performed for the decedent at his special instance and request in the sum of $12,000.
"7. That on the 6th day of January, A. D. 1954, the decedent did, in payment of and as an acknowledgment of said indebtedness, make, draw, and execute his check in writing payable to the order of the claimant in the sum of $12,000, which check was drawn on the Ferryville State Bank; that across the face of the check the decedent wrote in his own handwriting the words `For Labor.' That after the execution thereof said decedent delivered said check to Everett J. Hoch, an attorney at law of La Crosse, Wisconsin, and directed said Everett J. Hoch to deliver said check to the claimant upon decedent's death.
"8. That after the death of said decedent, said Everett J. Hoch did, pursuant to decedent's instructions and direction, deliver said check to the claimant, but that the said Ferryville State Bank, the named drawee, refused and still refuses to pay said check or any part thereof.
"9. That no part of said debt has been paid."
The court then made the following conclusions:
"1. That it was the intention of the decedent in executing said check payable to the order of the claimant as aforesaid to acknowledge that he was then and there indebted to said claimant in the sum of $12,000 and that said decedent did then and there intend and attempt to pay such indebtedness by the execution of said check.
"2. That the execution of said check by said decedent constituted an acknowledgment of his indebtedness to the claimant in the sum of $12,000.
"3. That said check was not intended by the decedent as a testamentary disposition nor was it intended to be a gift, and the same did not constitute a testamentary disposition or a gift.
"4. That the execution of said check and the acknowledgment of said indebtedness were sufficiently supported by consideration to form a proper basis for the allowance of the claim of the claimant.
"5. That the claim of the claimant be allowed in its entirety, to wit: In the sum of $12,000."
Judgment was entered as follows:
"It is ordered, adjudged, and decreed: That the claim of Otis W. Klinger, claimant, be allowed in its entirety, to wit: In the sum of twelve thousand dollars ($12,000) and that the claimant do have and recover judgment against the estate of the above-named decedent in the sum of twelve thousand dollars ($12,000).
"It is further ordered and adjudged that the claimant do have and recover costs against the estate in the above-entitled matter, limited to attorneys' fees in the sum of twenty-five dollars ($25)."
Contestant, Richard Kandall, and the executor of the estate, F. R. Garvey, appeal.
The trial court concluded that the $12,000 check was not intended as a testamentary disposition or gift, and the respondent does not base his claim to the $12,000 upon any theory of gift either inter vivos or causa mortis. The claim advanced by respondent is that the check was written to pay him "for labor," namely, uncompensated services rendered by respondent to decedent during the years from 1934 to March, 1945, and from September, 1946, to September, 1953.
The circumstances surrounding the writing of the check and the instructions of the deceased to his attorney are found in the testimony of Attorney Hoch to the effect that:
"I saw him on December 30, 1953, at the Lutheran Hospital in La Crosse. . . .
"He discussed making a will. He mentioned his brothers, Richard and Christan; he also told me that he had a fellow by the name of Klinger working for him and that he wanted to make some provision for him in his will. In discussing it with him, at first he told me that he wanted to make a provision for Mr. Klinger and wanted to then leave the remainder to the two brothers in equal shares, but in discussing the amount to be left to Mr. Klinger, he told me that he expected to be out of the hospital in a short time and that he would then go over his affairs and decide the amount to be left to Mr. Klinger. However, he said that he did want to make some provision at that time in case matters changed. He decided on five thousand dollars ($5,000) and the remainder to his brothers, Christan and Richard, in equal shares, and I then told him I would prepare the will and would bring it out to him, with my secretary. . . . that was January 2 that we then went out with the will. He executed the will, the will which has been admitted to probate. I saw him again on January 6 [1954]. . . . I don't know what his reasons were, but he discussed writing a check to Mr. Klinger. . . . We discussed Mr. Klinger and his reasons for wanting to leave him something and if he couldn't prove it by a memorandum, and if a written memorandum wouldn't be the better thing to do, but he didn't want to do it that way. I don't know what his reasons were. So then he requested that a check be prepared . . . he felt Mr. Klinger had contributed largely to his estate and that he wanted to leave this additional amount to him and he arrived at this figure of $12,000. I then prepared the check."
Further testimony by the attorney was to the effect that he (the attorney) advised Mr. Kandall that the advisable thing to do would be to add the codicil or make a new will or have a written memorandum as to just what this check was about, but it was decedent's desire to prepare the check. The check was signed in the presence of the attorney, and decedent made a note on the check, stating to his attorney that he was going to put "For Labor" on the check. The attorney testified that at the time of the preparation of the check, deceased "stated to me to the effect that he [Klinger] had contributed to his estate and he felt that he hadn't been adequately reimbursed; I don't remember the exact words."
It is evident from that testimony that decedent was grateful for the relation which had existed between him and respondent, and that he wished to show his appreciation to respondent by making him an object of his bounty. However, as the claim is based, not on the grounds of a gift or testamentary disposition, but rather upon the grounds of a debt owed by decedent to respondent, respondent must establish a contractual relation between himself and deceased out of which the alleged debt could arise. There is no writing in the evidence to prove such a relation, and the testimony of the respondent is negative in such respect. Respondent testified as follows:
"Got paid for how many hours I worked."
"I never made a demand on Alfred Kandall for additional compensation during his lifetime."
"I continued to work for Mr. Kandall for approximately eighteen years but made no demand for payment, and got paid for the hours and the time that I worked for him."
During his lifetime decedent never paid respondent any additional compensation for his services. Respondent never demanded any, although he "felt" underpaid. Respondent did not know anything about the $12,000 check until it was presented to him by Attorney Hoch after the death of Alfred Kandall. The established rule which must be followed here is stated in Estate of Breitzman, 236 Wis. 96, 98, 294 N.W. 489: ". . . where a stated sum has been regularly and periodically paid for services during a decedent's lifetime, such payment is presumed to have been in full unless decedent is shown to have expressly agreed to additional payments." A further rule applicable here is stated in Estate of Cornell, 247 Wis. 175, 177, 19 N.W.2d 186, "The fact that the appellant received regular payment of wages over a long period without demanding any additional amount is an important factor rebutting any presumption of further liability for services."
The facts show only that decedent felt under some obligation for claimant's services and help, but they disclose no legal consideration requiring further compensation, because a claim for an additional sum for services already rendered and fully paid for is without consideration on which it can be based. Meginnes v. McChesney, 179 Iowa, 563, 160 N.W. 50, and cases already referred to. In the absence of an express contract, the mere expression of belief by decedent and belief by respondent that the latter was not sufficiently paid cannot sustain a claim for extra compensation. See Howard v. Drexler, 14 Pa. Super. 59; 24 C. J., Executors and Administrators, p. 280, sec. 880. The adequacy or inadequacy of the wages of respondent is beside the point here. The question is whether a contract or agreement existed between the deceased and the respondent, under which respondent can claim additional compensation.
Respondent has the burden of proving that an express contract existed between him and the testator, that services were rendered by him, and that there was a failure to pay therefor on the part of the decedent. The claim must fall because there is no showing of a contract; and the conclusion of the trial court that "the execution of said check and the acknowledgment of said indebtedness were sufficiently supported by consideration to form a proper basis for the allowance of the claim" cannot be sustained under the evidence. The judgment must therefore be reversed.
By the Court. — Judgment reversed.