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In Re Estate of Foster

FEBRUARY 27, 1964.




Appeal from the County Court of Hamilton County; the Hon. HARRY L. ZIEGLER, Judge, presiding. Judgment reversed.


Rehearing denied April 2, 1964.

This is an appeal by Oscar Smith, from a judgment for $10,000 rendered against him, as administrator of the estate of Uriah Odle Foster, deceased, by the County Court of Hamilton County, on a verdict of a jury finding for Georgia Belle Mansell, upon a claim filed by her on December 17, 1957.

Uriah Odle Foster died intestate on May 6, 1957. The record does not disclose his age at the time of his death, nor does it disclose his marital status, and is silent as to his heirs at law. He owned a farm in the southeastern part of Hamilton County, and prior to his death had lived on that farm for many years in a large dwelling, referred to in the record as the "large" or "big" house. The claimant, Georgia Belle Mansell, is the wife of John Richard Mansell, who was a grandnephew of Uriah Odle Foster. John Richard Mansell was raised by Mr. Foster, and lived in the Foster home practically his entire life, prior to his marriage to claimant.

It does not appear when John Richard Mansell and claimant were married, but after their marriage they moved into a house built for them by Mr. Foster on the Foster farm, and located less than one-quarter of a mile from the Foster homestead. This house is referred to in the record as the "little" or "small" house. After the marriage of John Richard Mansell and claimant, they lived in Indiana for a short time, and while there, Clifton Taylor, a half brother of Mansell, testified that he had a conversation with Mr. Foster, in August, 1941, in which Foster said that he, Foster, wished Mr. and Mrs. Mansell to come back to Illinois, stating that he needed them and wanted them to take over his farm.

Just when claimant and her husband returned from Indiana and took up their abode in the little house does not appear. Clifton Taylor testified that in May, 1946, they were living there with their children, and at that time Foster said to Taylor that he wanted claimant to move into the big house and take care of him.

Mr. Taylor further testified that in either June 1955, or June 1956, he had another conversation with Mr. Foster at his home, in which Mr. Foster told Mr. Taylor that, at his, Foster's, request, claimant had taken over the big house and its duties. At that time claimant and her family were living in the Foster home, and Mr. Taylor testified that Mr. Foster had had his leg amputated, and was in a wheel chair, and while physically handicapped, he was mentally all right.

Nineteen witnesses were called and testified on behalf of claimant, and five were called to testify by counsel for defendant. While claimant and her family lived in the small house, decedent and his sister, Priscilla Davis, who was the grandmother of claimant's husband, occupied the big house. Mrs. Davis died in 1954. At this time Mr. Foster was hospitalized and it was following the death of Mrs. Davis, and while Mr. Foster was in the hospital, that claimant and her family moved into the big house, and from that time until Mr. Foster died, almost three years later, claimant and her husband and children lived in the big house, and claimant had charge of it. During these three years Mr. Foster was in the hospital all the time, except approximately ten months, and during these ten months while he was in his home, claimant did his laundry, bathed, dressed, and cared for him. She fed him, removed him from his bed on occasions and placed him in a wheel chair, and rendered to him every service that an aged, physically handicapped, sick man required. The evidence is that on one occasion Mr. Foster told Mr. Richardson, a neighbor, that he was going to the hospital in order to give claimant a rest. The evidence also discloses that Mr. Foster had been ill and in poor health for ten or twelve years before his death; that from 1952 until claimant moved into the big house in June, 1954, claimant occasionally stayed in the Foster home all night, frequently brought his meals to him from her home, did his washing, cared for, and rendered him many services, and frequently took him to the office of his physician, Doctor Tobey. Beatrice Organ testified that from 1952 to 1955 Mr. Foster was "practically helpless and had to have constant help and care twenty-four hours each day," and that claimant rendered to him the services he required.

The record further discloses that during the ten or twelve years before Mr. Foster's death, the husband of claimant was engaged in farming the land belonging to Mr. Foster, feeding cattle and looking after his business interests. They did their banking business with the People's National Bank of McLeansboro, and the records of that bank, offered in evidence by defendant, disclosed that in July, 1950, John R. Mansell and Uriah Foster had a joint account in this bank carried in the names of "John R. Mansell or Uriah Foster, either, or the survivor of either." This account was closed on September 9, 1950, and thereafter the account in this bank was carried in the name of Uriah Foster until August 17, 1955. On August 17, 1955, this account was changed to a joint account, and the books of the bank disclosed it was designated, "Uriah Foster or John R. Mansell, either or the survivor of either," and the account so remained until the death of Mr. Foster on May 6, 1957. It was an active account, the books of the bank disclosing that on July 23, 1951, Mr. Foster had to his credit $1,973.62. Thereafter deposits aggregating $78,009.77 were made and $53,734.56 withdrawn. Mr. Mansell and Mr. Foster wrote checks on this account, and the claimant, also, wrote three checks which were charged to this account, one to Dr. A.A. Tobey for services rendered to Mr. Foster, and two to Robinson's Drug Store. This account disclosed no checks were written to claimant either by Mr. Foster or by Mr. Mansell.

The records of the Pearce Hospital in Eldorado were introduced in evidence by defendant. These records disclose that Mr. Foster in 1950 was a patient in the hospital for three short periods, aggregating twenty days; that from July 25, 1950, until January 17, 1954, he was not hospitalized, but was living at his home; that he entered the hospital again on January 17, 1954, and from that date, and until September, 1955, he was a patient at this hospital at different periods, aggregating 185 days. On September 18, 1955, he again entered this hospital, and there remained until his death on May 6, 1957.

There was also evidence which tended to prove that the reasonable and customary charge for such services as claimant rendered decedent at his home, would be $8 to $10 per day, and one witness testified that "anyone working in a home and under the conditions and circumstances disclosed by the evidence, would get $1 per hour."

The evidence further discloses that during six months of the school year, 1953-1954, claimant was employed to transport children to the Flannigan Township High School, and received therefor $834.37, and for nine months during the school year, 1954-1955, she cooked at the Flannigan Township High School, and received for this service $1125.

The record shows that on December 17, 1957, John R. Mansell filed his verified claim in the Uriah Odle Foster estate for "looking after the farm property, building fences and general overseeing of the farm for ten years preceding the death of Uriah Odle Foster, also furnishing food ...... $12,000.00." On the same day the verified claim of appellee was filed, which recites:

"Taking care of, looking after and nursing Uriah Odle Foster for one (1) year . . . . . . $7300.00, and Priscilla Davis for eight (8) months 5500.00. For taking care of Uriah Odle Foster and Priscilla Davis for ten (10) years previous to the above $3000.00 each ...

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