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In Re Estate of White

NOVEMBER 9, 1973.

IN RE ESTATE OF ELMER E. WHITE, DECEASED — (EVA R. RUCKER, CLAIMANT-APPELLEE, CROSS-APPELLANT,

v.

ROBERT J. WHITE, EXR. OF THE ESTATE OF ELMER E. WHITE, DECEASED, DEFENDANT-APPELLANT, CROSS-APPELLEE.)



APPEAL from the Circuit Court of Henderson County; the Hon. EARLE A. KLOSTER, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

This action was brought by the claimant Eva R. Rucker, who filed a claim in the estate of E.E. White, deceased, for housekeeping services rendered the decedent for the five year period immediately preceding his death. The claim recited that compensation was due for her services at the rate of $2,000 per year. After a hearing, without a jury, the Circuit Court of Henderson County allowed the claim in the amount of $6500. The executor appeals from the judgment and the claimant has cross-appealed.

The executor contends, (1) that claimant did not prove a right to recover for services rendered the decedent. (2) that the trial court ruled incorrectly on certain objections, and, (3) that there was no basis in the evidence for the trial court's judgment as to the reasonable value of claimant's services.

The claimant on her cross-appeal contends that she proved her claim in amount of $13,000 and that the court should have allowed the claim in the amount she proved.

E.E. White and his wife were residents of Stronghurst, Illinois. In 1957 the wife died and he constructed a new home on a farm he owned in Henderson County. He and Harry and Eva Rucker moved into the new house. The claimant Eva Rucker was married to Harry Rucker who was a brother of the deceased Mrs. E.E. White. The three people lived together until 1961 when Harry Rucker died. After the death of her husband Mrs. Rucker continued to live in the home and remained there through E.E. White's death in 1972.

At all times the claimant performed the usual household duties, such as daily house cleaning and laundry. She prepared the meals, which were always tastefully prepared and in keeping with a diabetic condition which Mr. White had long had from prior to the death of his wife.

Although Mr. White had diabetes and was hospitalized on several occasions during the last two or three years of his life, he was not bedfast nor was he confined to the home. He continued to have a garden and was up and about all of the time.

No evidence of an express contract was ever offered at the hearing and claimant relied on an implied contract. The executor contends that a "family" relationship existed between decedent and claimant, that therefore the services are presumed to be rendered without any recompense other than incidents of a family relationship.

• 1 The general rule is that where persons live together as members of one family, a promise to pay for services of one to another is not implied from the mere rendition of the services; on the contrary, where nothing more appears than the rendition of such services, it is generally held that the services are presumed to be gratuitous. (Meyer v. Meyer, 379 Ill. 97.) This is also undeniably true where the relationship of the parties is sufficient to raise the presumption that they live together as a matter of mutual convenience. Annotation: 7 A.L.R.2d 8.

• 2 The family relationship which gives rise to the presumption need not necessarily be one of blood kindred. The rule rests upon the idea of the mutual dependence of those who are members of one immediate family, and such a family may exist although composed of remote relations, and even of persons between whom there is no tie of blood or affinity. (66 Am.Jur.2d, Restitution and Implied Contracts, sec. 32; Dunlap v. Allen, 90 Ill. 108; Collar v. Patterson, 137 Ill. 403; Heffron v. Brown, 155 Ill. 322.) In Collar v. Patterson, (page 407) the Supreme Court said, "The circumstances under which she went to live with the deceased, her relationship to his wife, and the fact that she continued to live in his family for so many years without any payment or settlement therefore, raises such a presumption that she lived there as a member of his family, that she can only recover by showing an express contract for wages or proving such circumstances as reasonably imply such contract."

"Such circumstances as reasonably imply such a contract" must show that the services were rendered upon the expectation of receiving pay therefore on the one side, and under the expectation of paying therefor on the other side, all at the time services were rendered. Ginders v. Ginders, 21 Ill. App. 522, 524; Heffron v. Brown, supra, at 326; In re Estate of Foster, 46 Ill. App.2d 319, 330.

There are many factors which will rebut or corroborate the presumption of gratuity. (66 Am.Jur.2d, Restitution and Implied Contracts, secs. 36-45; 7 A.L.R. 2d 8, secs. 8-13.) Among those are:

1. Express contract.

2. Oral promise to leave property by will or an invalid or ineffective agreement or instrument ...


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