{ "id": 8726189, "name": "The Peoples National Bank, Admr. v. Cohn", "name_abbreviation": "Peoples National Bank v. Cohn", "decision_date": "1937-11-22", "docket_number": "4-4788", "first_page": "1098", "last_page": "1106", "citations": [ { "type": "official", "cite": "194 Ark. 1098" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "72 S. W. (2d) 535", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "189 Ark. 361", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1425547 ], "opinion_index": 0, "case_paths": [ "/ark/189/0361-01" ] }, { "cite": "173 N. W. 110", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "54 A. L. R. 545", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "214 N. W. 928", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 0 }, { "cite": "172 Minn. 242", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 274629 ], "opinion_index": 0, "case_paths": [ "/minn/172/0242-01" ] }, { "cite": "79 S. W. (2d) 995", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "190 Ark. 579", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1421830 ], "opinion_index": 0, "case_paths": [ "/ark/190/0579-01" ] }, { "cite": "3 S. W. (2d) 301", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "176 Ark. 533", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1399872 ], "opinion_index": 0, "case_paths": [ "/ark/176/0533-01" ] }, { "cite": "254 S. W. 540", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "160 Ark. 311", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8721999 ], "opinion_index": 0, "case_paths": [ "/ark/160/0311-01" ] }, { "cite": "215 S. W. 662", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 0 }, { "cite": "140 Ark. 500", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1594462 ], "opinion_index": 0, "case_paths": [ "/ark/140/0500-01" ] } ], "analysis": { "cardinality": 782, "char_count": 15932, "ocr_confidence": 0.513, "pagerank": { "raw": 1.5702900931562666e-07, "percentile": 0.6785490196532694 }, "sha256": "3d91e0b61fff67388c24f03aa61f6cc00dc0c865673f9d73d3065ea407d4dda8", "simhash": "1:0b4b7e7581e6701b", "word_count": 2807 }, "last_updated": "2023-07-14T19:32:46.346325+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The Peoples National Bank, Admr. v. Cohn." ], "opinions": [ { "text": "Smith, J.\nSid Moss, a resident of Brooklyn, New York, left that city in an automobile in 1931, accompanied by a young man named Leo Cohn, They drove to Little Eock, where they stopped at a tourist camp for about two weeks. Moss was looking- for a location to make his future permanent home. Moss and Cohn drove from Little Eock to California, where they remained for a few weeks, but, preferring Little Eock, they returned to that city, where Moss resided until his death, which occurred January 3, 1935. Moss built a home, in which he resided with Cohn as a member of his family. Cohn remained with Moss from April 10,1931, until September 25, 1933, at which time Cohn returned to New York on account of his health.\nThe undisputed evidence shows that Moss was a confirmed invalid, and he was paid disability benefits under an insurance policy which he had carried. In addition, he received monthly remittances from his wife, who remained in New York. He had a son, who went by the name of Eaymond Brush, from whom he was estranged, in fact, Moss stated to more than one person in Little Eock that he had no children, and he never referred to his wife.\nCohn lived with Moss as companion, chauffeur, servant, nurse, and manager of his household, and had such charge of his personal affairs that a power-of-attorney was given him to discharge the duties which he performed. Cohn made all purchases for the house and paid for them with Moss\u2019 funds.\nDr. A. B. Tate, a neighbor and intimate friend of Moss, testified that he was at Moss\u2019 home nearly every day during Moss\u2019 life in Little Eock, and that Moss was a very sick man all the time. Moss\u2019 sight was much impaired, and he had to have some one with him all the time, and'Cohn was with him constantly. Moss was able to attend to some of his more simple wants, but Cohn went with Moss whenever Moss left home, and would assist Moss across streets when they walked and drove him in the car when they rode. Cohn helped dress and undress Moss, who was partially paralyzed. Moss \u201cwas a dominating person,\u201d being of a very nervous disposition, but Cohn was attentive and patient. Witness had heard Moss speak of Cohn frequently in terms of greatest affection, and they were like father and son. Witness heard Moss say he was going to leave his property to Cohn to pay him. for his attentions. Cohn got his room and hoard at Moss\u2019 house. He was given a night off once a week, at which time he drove Moss\u2019 car, the operation and upkeep of which was paid by Moss. Moss frequently had guests at his home, and Cohn was occasionally allowed that privilege. Moss kept both a cook and yard servant in addition to Cohn.\nDr. Roe, who attended Moss in a professional capacity during Moss\u2019 residence in Little Rock, testified that Moss suffered from partial paralysis of his arm and leg, and had defective vision, and required constant attention, which 'Cohn rendered both during the day and at night. Cohn performed the duties of a practical nurse, which witness thought were worth from $25 to $35 per week. Cohn left Little Rock upon his advice \u00e1nd with the reluctant consent of Moss for treatment on account of loss of weight.\nA Mrs. Dover, who operates the tourist camp where Moss and Cohn first stopped when they came to Arkansas, and by whom Cohn is now employed, and who saw much of Moss after he had built a home near her camp, testified that she knew the relationship between Moss and Cohn, and heard Moss speak of Cohn frequently in terms of gratitude and affection, and had heard Moss say that Cohn was to have pay for his services.\nMrs. Mary Byrd, who had been employed as a cook by Moss for eig'ht months of the time Cohn lived with Moss, when asked whether Moss had ever talked with her about Cohn, answered: \u201cHe did all the time, and said he was going to make a will and leave everything to him.\u201d\nJohn Lofton, an attorney, testified that at the direction of Moss he had prepared a will, a carbon copy of which he had retained. This testimony was objected to as incompetent. It does 'not appear that the will was ever executed. There was testimony, also, to the effect that Moss attempted to buy an interest in a business for Cohn\u2019s benefit.\nWhen Cohn left Little Rock he did not return until after the death of Moss, when, finding that Moss had died intestate, he filed a claim against the estate of Moss for services in the sum of $3,000. This claim was disallowed by.the administrator of the estate of Moss, but was allowed by the probate court in the sum of $1,500. Upon an appeal from the judgment of the probate court a trial was had in the circuit court, where the testimony, summarized above, was heard, and the court rendered judgment in 'Cohn\u2019s favor for $1,500. This appeal is from that judgment. This judgment was rendered upon the following finding made by the circuit court: \u201c * * * There is proof, and the court finds that the deceased made declarations of his intention to pay the claimant, but that the payment was to be made at the time of his death rather than deplete his then property. * * * Having rendered the services on an expressed or implied contract for payment, the court finds that the claimant is entitled to pay and fixes the sum from the testimony at $1,500 to cover the period, in addition to his board and room, with the deceased.\u201d\nAfter Cohn\u2019s departure, Moss employed a man named Ned Beckham, to render substantially the same services which Cohn had performed, and Beckham has a claim for his services against the estate of Moss.\nBeloit Taylor, a practicing attorney in Little Rock,, testified that as attorney for Beckham he attempted to probate a will executed by Moss, which devised property in small amounts to a number of persons and directed the payment of Beckham\u2019s expenses through a medical college. When witness learned that Moss had a son, whose name was not mentioned in the will, he abandoned \u25a0 the attempt to probate the will, and filed a claim against the estate of Moss for the value of the services which Beckham had rendered Moss. The merit of that claim is not before ns.\nOur own and other cases are to the effect that claims of this character are to be closely scrutinized, because of the opportunity for fraud. But it is the trial court, or jury, which thus considers and weighs the testimony lending to establish the claim. When it has been adjudged valid by a jury, or by the court sitting as a jury, as in this case, we must give the same weight to the finding of the court or -the verdict of the jury which is accorded in other cases, and that finding or verdict will not be disturbed if there is substantial evidence to support it. Measured by this test, we are unable to reverse the judgment here appealed from as being unsupported by sufficient testimony; indeed, the undisputed' testimony shows that Cohn rendered services of a very valuable nature.\nIt is true that, while doing so, Cohn lived with Moss as a member of the latter\u2019s family, and the presumption is, therefore, that the services were gratuitous, and the burden of proof is upon the claimant to establish otherwise. Lineback v. Smith, 140 Ark. 500, 215 S. W. 662; Nissen v. Flournoy, 160 Ark. 311, 254 S. W. 540; Clerget v. Williams, 176 Ark. 533, 3 S. W. (2d) 301; Graves v. Bowles, 190 Ark. 579, 79 S. W. (2d) 995.\nAt \u00a7 881, p. 281, vol. 24, C. J., chapter Executors and Administrators, it is said that this rule applies where the family relationship actually existed between claimant and decedent, although there was no consanguinity, affinity or adoption.\nIf, therefore, it be insisted that Cohn should not recover compensation because he lived as a member of Moss\u2019 family, it may be answered that even near relatives, bound by ties of blood, may recover under these circumstances, if there was an agreement, either express or implied, that compensation should be paid for the services rendered.\nIn the case of Nissen v. Flournoy, supra, a sister filed claim against her brother\u2019s estate. The jury was instructed at the trial of that case in the circuit court that the claimant \u201ccould not recover without establishing a special or express promise to pay her. \u2019 \u2019 In holding this instruction erroneous Judge Hast said: \u201cIt was incumbent upon the plaintiff to show that she performed the services which were at the foundation of her claim, expecting, at the time, to be paid therefor, and that her brother so understood it, or tbat, under tbe circumstances, be bad sufficient reason to believe tbat sbe expected pay for ber services.\u201d Tbat bolding was reaffirmed in tbe case of Clerget v. Williams, supra, as was also tbe declaration tbat tbe agreement to pay might be shown by circumstantial as well as by direct evidence.\nIt was not necessary, therefore, to prove an express contract to pay Cohn; tbat obligation will be implied, if the circumstances in proof establish tbe obligation to pay. This being true, it is not essential tbat tbe testimony establish a contract specifying tbe amount to be paid. Tbe competent evidence does not establish what sum of money this would be. But a recovery is not to be defeated, on tbat account. In such case, tbe court or jury will determine tbe reasonable value of tbe services under all tbe circumstances, as was done at tbe trial from which this appeal comes.\nHere, both tbe circumstances and tbe positive testimony support tbe finding of tbe court, set out above, tbat, although Cohn lived with Moss as a member of Moss\u2019 family, there was in fact an agreement tbat Cohn should be paid for bis services.\nSo much of the testimony of tbe attorneys mentioned as was admitted was competent. Tbe will prepared by Lofton was not admitted in evidence, and if be made any use of it at all, which fact does not appear, it was merely to refresh bis recollection as to his conversation with Moss.\nAt \u00a7 141 of the chapter on Witnesses in 28 B,. C. L., p. 550, it is said: \u201cCommunications relating to making of will generally. \u2014 An attorney who prepares a will cannot during tbe life of tbe testator testify to communications concerning tbe will made to him by the testator, or to the contents of the will itself, but it may be laid down as a general rule tbat, unless otherwise provided by statute, communications by a client to tbe attorney who drafted tbe will, in respect to tbe document, and all transactions occurring between them leading up to its execution, are not, after the client\u2019s death, within the protection of tbe rule as to privileged communications, in a suit between the testator\u2019s devisees and heirs-at-law, or other parties who all claim under him. * * V\u2019\nThe will testified to by Taylor was not offered in evidence, and his testimony tending to show that Beckham filed a claim for services rendered was not incompetent.\nCohn offered to testify as to the details of his contract and relationship with Moss; but this testimony was properly excluded under \u00a7 5154 of Pope\u2019s Digest. The other competent testimony, set out above, is sufficient to support the finding of the court that there was a contract, implied if not express, that Cohn should have compensation, in addition to his living, and a contract, either express or implied, suffices to sustain the recovery.\nIt is argued that there was no testimony that Moss had not paid Cohn for his services. There were only two witnesses who could have given definite testimony upon this subject. One of these was Moss, who was dead, and the other was Cohn, who was not permitted to testify, because, under the law, his testimony was not competent. It is true that Cohn presented no bill against Moss during Moss\u2019 lifetime; but it is true also, under the undisputed testimony, that he had a just expectation of being-compensated in Moss\u2019 will.\nThe rules of law here involved are extensively annotated in a note to the case of Carlson v. Krantz, 172 Minn. 242, 214 N. W. 928, 54 A. L. R. 545. The annotator there says: \u201cBut if the services are rendered in pursuance of a mutual understanding- that compensation is to be made by will, the value of the services may be recovered in an action at law, in the event no will is made, though, if rendered merely with the expectation, by the person rendering them, that they would be compensated by will, without a mutual understanding they do not constitute a valid claim. \u2019 \u2019\nHere, the proof is that there was not a mere expectation, but a contract, implied if not express, that Cohn should be paid for his services.\nIt is true that had Moss lived, something less than two years longer than he did live, the claim would have been completely barred by Cohn\u2019s inactivity in attempting to collect his demand, but the fact reihains that the claim was not completely barred at the time of Moss\u2019 death. The inactivity on the part of Cohn in waiting for his pay raises no presumption of law that he had been paid. It was a mere circumstance to be weighed by the court in determining whether Cohn had a right to recover, and, if so, whether he had been paid for his services.\nIn the chapter on Payment in 48 C: J. 680, it is said that \u2018 \u2018 The general rule is that the burden of proving payment is upon the party who alleges it,\u201d and several hundred cases are cited in support of the text quoted.\nIn the case of Herrick v. Hayes, 173 N. W. 110, decided by the Supreme Court of Iowa, a headnote reads as follows: \u201cIn action against nephew by uncle\u2019s administrator on nephew\u2019s note in which nephew counterclaims for accommodations furnished uncle, and proves that accommodations were furnished upon expectation of payment, administrator has burden of proving payment.\u201d In other words, the nephew had the burden of showing that the accommodations had been furnished upon his expectation of payment of the value thereof. That proof being made, the burden of showing payment was upon the administrator. See, also, 68 C. J., \u00a7 211, p. 591.\nThe compensation allowed by the court of $1,500 for a period of service covering 29 months and 15 days amounts to $51.70 per month, according to a calculation not questioned, and the testimony is sufficient to support the finding that this was the reasonable value of the services; but the time for which the compensation was allowed is excessive. The case of Beauchamp v. Jernigan, 189 Ark. 361, 72 S. W. (2d) 535, is decisive of that question. It was'there held (to quote a headnote) that \u201cA claimant who kept house for and waited upon decedent for nine years under an oral agreement to pay therefor, held not entitled to recover for any work done more than three years before decedent\u2019s death, under Crawford & Moses\u2019 Digest, \u00a7 6950.\u201d\nUpon the authority of this case appellant requested the court to make the following* declaration of law: \u201cThat where a claim is made for alleged services rendered to a decedent, the statute of limitations provided in \u00a7 6950 of Crawford & Moses\u2019 Digest applies, and the claimant is not entitled to recover for any such services, \u2022except such as were rendered within three years immediately preceding the death of decedent.\u201d\nIt was error to refuse this declaration. There could be no recovery except for such services as were rendered within three years immediately preceding the death of the decedent, which occurred January 3, 1935, so that there could he no recovery for services rendered prior to January 3, 1932. But Cohn quit the service of Moss on September 25, 1933, and could not, of course, recover for services after that date. The judgment should, therefore, have been only for services rendered between these dates, which would be, not 29 months and 15 days, but 1 year, 8 months, and 22 days, and compensation, for that period, figured at $51.70 per month, amounts to $1,072.41. The judgment must, therefore, be modified by reducing it to that amount, and as thus modified will be affirmed.", "type": "majority", "author": "Smith, J." } ], "attorneys": [ "Donham & FulTi, for appellants.", "Ghrisp & Nixon, for appellee." ], "corrections": "", "head_matter": "The Peoples National Bank, Admr. v. Cohn.\n4-4788\nOpinion delivered November 22, 1937.\nDonham & FulTi, for appellants.\nGhrisp & Nixon, for appellee." }, "file_name": "1098-01", "first_page_order": 1116, "last_page_order": 1124 }