Florence Home for the Aged v. Musgrove

Wenke, J. This action was commenced by the Florence Home for the Aged filing a claim in the estate of Olivia Johnson, deceased, in the county court of Douglas county. Bessie Mus-grove, administratrix with the will annexed, filed objections thereto and upon hearing in the county court the claim was disallowed. From that order the claimant appealed to the district court for Douglas county where the findings and judgment of the county court were sustained — 373 — and the claim disallowed. From that order the claimant has appealed to this court. For the purpose of this appeal the Florence Home for the Aged, a corporation, will be referred to as the claimant; Olivia Johnson, deceased, as the deceased; and Bessie Mus-grove, administratrix of the estate of Olivia Johnson, deceased, as the administratrix. The claim filed in the estate of Olivia Johnson, deceased, is for the sum of $1,000 with interest at five per cent from November 23, 1932, and is based upon a contract entered into between- the claimant and the deceased on that date. To this claim the administratrix filed objections setting forth that the contract lacked consideration, was based on fraud, had been paid, and was barred by the statute of limitations. From an examination of the record we will only consider the defense of payment. As stated in In re Estate of Peterson, 104 Neb. 574, 178 N. W. 187: “Where an administrator pleads that a claim against the estate was paid in full during the life of decedent, the burden is on him to prove that defense.” See, also, Farmers Cooperative Mercantile Co. v. Shultz, 113 Neb. 801, 205 N. W. 288; Washington v. Beselin, 141 Neb. 638, 4 N. W. 2d 753; 34 C. J. S. 279. This is an action at law in which a jury was waived and as stated in National Engraving Co. v. Queen City Laundry, 92 Neb. 402, 138 N. W. 575: “Where an action at law is tried in the district court without a jury, findings of fact have the same force as a verdict.” “The credibility of the witnesses and the weight to be given their testimony are solely for the consideration of the jury.” Moore v. Krejci, 139 Neb. 562, 297 N. W. 913. “The finding of a trial judge in a law action has the force of a verdict and will not be disturbed upon appeal unless clearly wrong.” Quivey v. City of Mitchell, 133 Neb. 727, 277 N. W. 50. The undisputed evidence shows that the deceased, Olivia Johnson, a domestic, had in 1932 reached the age of 68 years, being born on February 4, 1864. She had saved some $11,000 which she had on deposit in building and loan — 374 — associations in Omaha. The previous year she had a hip injury which somewhat incapacitated her and on or about October 1, 1932, she entered the home of the claimant for aged people, paying at the rate of $50 a month. On November 4, 1932, she made an application to the claimant for a life membership, which was based on a rate of $500 a year for the life expectancy of the applicant, stating she had on deposit with the Omaha Building and Loan Association $3,000. This application was approved by the claimant and on November 23, 1932, a life membership agreement was entered into in consideration of $4,250 of which $3,250 was paid and $1,000 remained unpaid. The deceased in said contract represented that she had no funds or property other than that paid and agreed that if she had other property or thereafter acquired other money or property she would pay the balance and that the claimant should have a claim against her estate for the amount thereof. In the forepart of 1936 the claimant constructed a wing' to its home and the Finance Committee at their March 16, 1936, meeting fixed the rates for the rooms, in this new addition at $180 per annum additional for rooms with connecting bath and $300' per annum additional for rooms with private bath and toilet. The deceased desired one of these rooms with private bath and toilet and in September of 1936 moved into such a room. On September 24, 1936, she caused to be paid to the claimant the sum of $2,-000. She died on July 16, 1941, leaving an estate of over $6,000‘. The dispute between the parties arises out of their disagreement as to the purpose for which the $2,000 was paid. The administratrix, who is a niece of the deceased and residuary legatee under her will, testifies that while she handled the bank books for the deceased, she did not sign withdrawal slips but that the deceased signed them and then she took them to the bank and got the money for her. That a few days before September 24, 1936, the date the $2,000 was paid, she had a discussion with the deceased and Mr. Poe with reference to. the deceased occupying a room in the — 375 — new wing. This conversation took place in the room then occupied by deceased. That deceased expressed her desire to move into a room in the new wing, the cost of which Mr. Poe stated was $1,000 with private bath and $850 for regular bath. That Mr. Poe stated that the deceased owed $1,000 on the original contract and that they had better pay that because it was drawing interest and that the claimant would have a' first claim if she passed away and there was anything left. Administratrix testified: “I said, ‘Well, then, she will have to pay $2,000.00’, and he said ‘Yes’, and she did pay the $2,000.00, and I said, ‘Well, that makes her all paid up then’, and he said ‘Yes’.” The deceased signed a withdrawal slip on the Omaha Building & Loan Association for $2,000 directing it to be made payable to the claimant. Administratrix then obtained a check from the Association on September 24, 1936, and took it out to the home ahd gave it to Mrs. Poe, Mr. Poe being absent. Mrs. Poe offered to give her a receipt for the check but she told her to give it to the deceased as it was her money. She had no knowledge of the supplemental agreement issued by the claimant on September 26, 1936, until after the death of deceased, nor of the receipt issued by the claimant on September 25, 1936, nor the contents thereof. Mrs. Earl W. Gannett, who is neither related to nor a beneficiary under the will of the deceased, testified that she was a close friend and that she and her husband were her business advisers, she having worked in their home as a domestic for over 21 years. That after the deceased entered the home of claimant she frequently visited her there. That she discussed with Mr. Poe, before deceased moved into the new room, the advisability of her paying $1,000 for a room with private bath, which amount Mr. Poe had told her it would be, or taking a cheaper room with connecting bath at $850 or not moving into the new wing. . No demand was ever made on deceased after September 24, 1936, for the payment of this claim nor was any investigation made by claimant to ascertain if she had any additional assets with which to pay. — 376 — Lloyd E. Poe, who had been superintendent of the claimant’s home for 11 years, testified that in 1936 the deceased’s expectancy was 7.1 years. That based on the $300 per annum rate fixed by the finance committee as a charge for a room with private bath in the new wing, the regular charge to the deceased at the time of her moving, which he testifies was September 19, 1936, was $2,130. He testifies that shortly after August 27, 1936, he went to the home of Mr. and Mrs. Earl W. Gannett and discussed with them the cost of the new room. He stated to them it would be $2,130 based on her expectancy of 7.1 years at $300 a year and that he also discussed with them the balance owing on the contract. He denies that he ever quoted to Mrs. Gannett any other figures. He also testifies that he did not recall any such conversation as the administratrix testifies to and denies ever having told any one that the charge to the deceased for the new room would be less than $2,000. On the day following the delivery of the $2,000' check to Mrs. Poe, Mr. Poe issued a receipt found in the papers of the deceased at the home after her death as follows: “Sept 25 1936 “Received of Mrs. Muskgrove Two Thousand — 00/100 Dollars for Miss Johnsons new room “$2000.00 B. L. Poe” The next day the claimant issued the following supplemental agreement signed only by the claimant which he testifies he delivered to the deceased: “Supplemental Agreement to be attached to Life Membership Contract for room with private bath in new addition. “Omaha, Nebraska, September 26, 1936. “In consideration of the payment of $2000.00 by Olivia Johnson, the receipt of which is hereby acknowledged, the Florence Home for the Aged agrees to provide Olivia Johnson a room with private bath in the new addition of the Florence Home during the balance of her life membership contract dated November 23, 1932, said room to be assigned by the Home. All other terms and conditions of said life membership contract to. remain the same and in full force and effect. — 377 — “This supplemental agreement is attached to and made a part of the above referred to life membership contract. “FLORENCE HOME FOR THE AGED “By G. H. Payne President “Attest: L. E. Poe Assistant Secretary.” The cash journal of the claimant as of September 26, 1936, has the following entry: “Surplus income, Olivia Johnson, new building, additional payment, room with bath, $2,-000.00.” And account No. 3-1 of life members in the new addition has the following entry: “Olivia Johnson, additional payment, room with bath, $2,000.00.” This evidence presents a conflict on the question of the purpose for which the $2,000 was paid on September 24, 1936. Both lower courts found it included payment of the balance owing on the original contract of November 23, 1932, and disallowed the claim, and under the rule, as often announced by this court,' that a verdict or findings on conflicting evidence will not be disturbed on appeal, the action of the lower court is affirmed. Affirmed. Carter, J., dissents.