In re Turner's Estate

Fellows, C. J. (after stating the facts). Upon the authority of In re De Spelder’s Estate, 181 Mich. 153, the testimony of plaintiff’s husband was properly received in evidence. The services to be performed by [362] plaintiff and which were performed by her were her personal services of the character usually performed by nurses. They were not such services as are usually performed by the wife in the household of her husband as his helpmeet and for his benefit. Nor were they such assistance as may be given in case of temporary illness. They covered a period of years and were performed under an express contract made directly with deceased by plaintiff. Mr. Justice Stone, who wrote the opinion in the case above cited, there fully reviews the authorities and we need not go over them again. It was not error to admit this testimony. Defendant’s counsel called one of the commissioners and sought to prove that the claim was not established before the commissioners by testimony. Upon objection by plaintiff’s counsel, this was excluded. Error is assigned on this ruling and much space is taken in the brief with the discussion of this question. We do not understand that there was any irregularity in the report of the commissioners. The appeal was a general one. Upon such appeal the case was tried de novo, and the issue, and the only issue, was the liability of the estate. What the award of the commissioners was or upon what they based their award were not questions to be disposed of on this general appeal from their allowance. While it is true that the claim may not be changed on appeal (Raub v. Nisbett, 111 Mich. 38) the record discloses that defendant’s counsel was not seeking to prove that plaintiff had changed her theory of the case but was seeking to show that the claim had been allowed without sufficient proof. This issue was not triable on this general appeal. Several requests were preferred by defendant’s counsel. Some of the requests contained correct rules intermingled with incorrect ones. The trial judge fully covered in his general charge the law* applicable [363] to the case. He made the case hinge entirely upon the question of whether there was an express contract. While he might with propriety have told the jury that if they found there was an agreement to employ plaintiff and pay her what the services were reasonably worth she could recover what the proofs showed they were reasonably worth, not to exceed the amount of the claim, by his charge he put a greater burden upon her than this. Indeed the charge as a whole was much more favorable to defendant than he was entitled to. He cannot complain of it or the refusal to give the preferred requests. A motion for a new trial was made. It was supported by affidavits. Counter-affidavits were filed raising quite definitely questions of veracity. The trial judge denied the motion. We find no occasion to disturb his conclusion. The overwhelming weight of the evidence was with the plaintiff. Defendant’s counsel claims that he was unprepared to meet the claim of an express contract, that he had been informed the plaintiff would rely on an implied contract. This was denied. Without passing on the credibility of the affiants it will suffice to say that at the very beginning of the case defendant’s counsel asked that plaintiff be required to elect whether she would seek to recover on an implied contract or an express one. Plaintiff’s counsel promptly elected to rely on an express contract. No application for continuance was made nor was there any claim then made of surprise and the trial proceeded. It is pretty late to raise the question for the first time on a motion for a new trial. See Johnson v. Doon, 131 Mich. 452. All of the assignments of error have been considered. We find no reversible error. The judgment will be affirmed. Wiest, Stone, Clark, Bird, Sharpe, Moore, and Steere, JJ., concurred.