Robnett v. Robnett

Phillips, P. J. A claim was filed by appellee against the estate of P. H. Robnett, deceased, for work, labor and services rendered during five years prior to his death. Appellee is a daughter of deceased. E. O. F. Robnett, the widow, is administratrix. A judgment was rendered against the estate in the County Court. An appeal was taken to the Circuit' Court, when again appellee recovered a judgment. The plaintiff called as a witness the administratrix, who is the widow of deceased, who testified that several years prior to the death of P. H. Robnett, the appellee had been teaching school and living away from home, having left after she became of age, and some five or six years before the death of P. H. Robnett, he requested the witness to write and request appellee to come home, as she was needed at home, and in accordance with that request she wrote appellee, who came home and had "since rendered service in the family most of the time. It is urged the administratrix, the widow of the deceased, is not a competent witness to testify when called, for one who has presented a claim against the estate. So far as she occupies the position of administratrix, that relation of itself does not prevent her being a witness regardless of the party calling her. Steele v. Clark, 77 Ill. 471; Remann v. Buckmaster, 85 Ill. 403. Neither does her relation to the estate by way of the interest she has by Subdivision 4 of Sec. 1 of Chap. 39 E. S., entitled “Descents,” prevent her being called as a witness. Freeman v. Freeman, 62 Ill. 189; Byers v. Thompson, 66 Ill. 421. By the express provision of Sec. 5, Chap. 51, E. S., entitled “ Evidence,” she, as wife of the deceased, is made competent to testify “ in all matters of business transactions, when the transaction was had and conducted by such married woman as the agent of her husband.” If the husband was alive and suit brought against him for this claim by virtue of that section, the wife would be a competent witness whether called for or against him. His death would not disqualify her from being called as such witness under such circumstances when a claim is filed against the estate. She was a competent witness to testify that by the direction of her husband she had written a letter to the plaintiff requesting her to return home, that he needed her. Her act in making that request and its purpose was as agent of her husband. She would not be competent to testify to other facts in this case, as to labor performed, money advanced, and the like. It is further insisted that plaintiff’s claim not having been presented on the day of adjustment, the costs should have been adjudged against her. The Circuit Court adjudged that the costs in the County Court should be paid by appellee, and that she should recover costs in the Circuit Court, to be paid in due course of administration. This was in conformity to the statute, and was not error. While the plaintiff who does not file her claim on the day of adjustment may be liable for costs in the County Court, it does not follow that costs of the Circuit Court should be taxed against her. It is further urged that the evidence does not make a case where appellee would be entitled to recover; that she was of age and away from home is shown, and that the intestate requested her return as she was needed. It further appears that from her return home she was engaged in rendering service in various 'ways, that she took an active part in the household duties and the work on the farm, engaging in fruit raising and other work, and having stock on the farm. It is true there does not seem to have been any special agreement that she was to be paid for her services, but being of age and away from home to make her own living, and returning home under the request shown, and afterward rendering services, there was evidence to warrant a finding, there was an implied agreement to pay. As was said in Freeman v. Freeman, 66 Ill. 106, “After leaving, the presumption arises that he thenceforth intended to labor and accumulate property for himself, and when he returned at the solicitation of the father it is but a reasonable presumption the father intended to pay, and he to receive pay for his labor. * - ” In some respects the cases are alike and there is evidence to sustain the finding by the court that there was an implied promise to pay appellee for services so rendered. The appellee was offered as a witness in her own behalf in rebuttal and objected to as incompetent, and objection overruled, to which appellant excepted. While she is not competent as a witness in chief, yet she is competent to testify in rebuttal to conversations and transactions testified to by other witnesses called by appellants by Sec. 2 of the chapter entitled “ Evidence and Depositions.” She was a competent witness on these facts. Penn v. Oglesby, 89 Ill. 110; Plain v. Roth, 107 Ill. 588. Except as to such facts, appellee was incompetent as a witness. From the entire evidence that was competent in the record there was evidence to sustain the verdict; and although certain questions and answers of appellee were inadmissible, and certain questions and answers asked the widow were inadmissible, yet on trials before the court without a jury, that evidence, ashore, was not misleading, and to the prejudice of appellants. Objection is made to certain propositions of law held for appellee. The third proposition held is: “ The court instructs you that if you find from the evidence that the plaintiff within five years last past and before the death of P. H. Robnett, paid out and expended her own money in and about the necessary expenses of the family and farm of said P. H. Robnett, and with his knowledge and consent, then it raised an obligation on him to repay the plaintiff, and she may now recover against the estate such sum as you find from the evidence remains unpaid, if any remains unpaid, not exceeding the amount of plaintiff’s claim.” It is urged that the proposition allows a recovery for more than five years prior to filing the claim. It is, “ If within five years last past and before the death of P. H. Robnett,” the appellee paid out money, etc. We do not believe this, proposition is subject to the objection urged. This claim was filed in the County Court, and on appeal by the administrator was brought to the Circuit Court, and then a judgment for 8600 rendered for appellee against the estate, and this appeal to this court is brought by the heirs. From the entire evidence in the record we do not find such errors that we ought to reverse this judgment. The judgment is affirmed. Judgment affirmed.