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Hamilton County Appeals.

coinpany after said assignment of said policy by Adolph F. Schmidt to said Horace W. Harmeyer, which said premiums and interest are hereinafter referred to and ordered paid to said Horace W. Harmeyer.

“The court further finds that because of the conduct of the defendant Horace W. Harmeyer, through correspondence with the Insurance Department of New York and the Post Office Department at Washington, and through other acts whereby the plaintiff was being greatly injured, the said plaintiff was forced and did, as a matter of defense and protection to its interests, and in order to prevent further injury to its business, deposit said money with this court; that the depositing of said money under such circumstances did not constitute a waiver on the part of the company of the provision and terms of the policy providing that the said Horace W. Harmeyer shall establish his insurable interest in the life of Adolph Schmidt.

“The court further find on consideration of the answer and cross petition of the defendant, Horace W. Harmeyer, that the said defendant Horace W. Harmeyer is not entitled to the entire fund deposited so as aforesaid with the clerk of this court; that the said defendant Horace W. Harmeyer is entitled to the premiums paid by him to said company, to-wit: April 22, 1911, $88.80; April 27, 1912, $88.80; April 27, 1913, $88.80; with interest thereon from said respective dates up to the date of this decree, amounting in all to $294.53, and the further sum of $72.75 interest paid by the said Horace W. Harmeyer on the loan of $485 obtained by Adolph F. Schmidt in his lifetime from the plaintiff with interest thereon to date amounting in all to $12.15, making a total of $379.43, which amount the clerk of the court is hereby ordered to pay to said Horace W. Harmeyer or to Thos. L. Michie, his attorney.

“And the court coming now to the consideration of the answer and cross petition of the defendant, Carrie Schmidt, as administratrix of the estate of Adolph Schmidt, deceased, and the evidence, finds that the plaintiff was at all times and still is willing to pay the difference between the amount so found to be due to said Horace W. Harmeyer and the amount deposited

Insurance Co. v. Harmeyer,

with the clerk of this court to Carrie Schmidt, as administratrix of the estate of Adolph F. Schmidt, deceased, and the court doth now, therefore, order, adjudge and decree that the clerk of this court pay the balance of said fund remaining in his hands amounting to the sum of $4,153.76 to the said Carrie Schmidt as administratrix of the estate of Adolph F. Schmidt, deceased, or to Frank H. Kunkel, her attorney."

To which decree exception is taken in the following language :

“To the foregoing decree Horace W. Harmeyer, by his counsel, duly excepts, and gives notice of appeal to the court of appeals of Hamilton county, Ohio, and the court hereby fixes the appeal bond at $1,000.”

No motion for new trial was filed, and no bill of exceptions was taken. The case is therefore before this court on the pleadings and the judgment entered.

At the conclusion of the argument in this court, the court announced that the judgment would be affirmed, without stating any reasons for the affirmance.

The legal question presented to us seems so clear that we hardly thought it necessary to consider the case further, or to give any reasons why the judgment should be affirmed.

The motion for re-hearing is now filed, and elaborate arguments have been presented to us, asking that the former judgment be set aside and judgment rendered for the defendant in error.

After giving the matter full consideration, we see no way by which we can reverse our former judgment. The issues were squarely made as to whether Harmeyer was entitled to the whole amount of the policy or whether he was limited to recovering the amount of his insurable interest. We are bound by the judgment that evidence was offered which would fully sustain the finding in favor of Mrs. Schmidt.

Judgment affirmed.
Jones, 0. B., and Jones, E. H., JJ., concur.

Carroll County Appeals.

EXECUTORS AND ADMINISTRATORS-LIMITATION

OF ACTIONS.

[Carroll (7th) Court of Appeals, April Term, 1913.)

Pollock, Metcalfe and Norris, JJ.

LEWIS WALTERS, ADMR. V. JOHN D. HEIDY.

Action for Value of Services Maintainable, Failure to Compen

sate by Bequest for Services Rendered, Limitation Runs from Appointment of Administrator. W agreed with H that if he would render her certain services

she would, in compensation thereof, make a will giving him all the property she owned at the time of her death. H per

formed services under the agreement. W died intestate. Held: 1. H can maintain an action to recover the value of the services

so rendered. 2. The statute of limitations does not begin to run against

such action until the appointment of an administrator of W's

estate.
[Syllabus by the court.]

ERROR.

Wallace M. Handley, for plaintiff in error.
I. N. Blythe, for defendant in error.

METCALFE, J.

Defendant in error was plaintiff below. In the second amended petition filed in the case it is averred in substance, that in February, 1890, he entered into a verbal agreement with Nancy Heidy, whereby he agreed to live with her upon her farm, known as the Tom Neely farm, as long as she desired him to do so, and that in compensation for his services to be rendered her in that behalf she agreed to make a will and give to him all the property she owned at the time of her death. That in pursuance of that agreement he did move onto said farm and for a period of about two years gave his work and labor to the said Nancy Heidy, and performed services which he claims were of the value of a thousand dollars. In the meantime Nancy Heidy married Lewis Walters, plaintiff in error in this case,

Walters v. Heidy.

and some time after her marriage with Walters Heidy moved away from the farm. Nancy Walters died in 1910 intestate, and after the appointment of an administrator Heidy brought his action to recover the value of the services which he claims to have rendered under his agreement with her. Upon the trial of the case Heidy recovered judgment. A number of questions are urged in argument, but we think the only questions of importance are, whether the action can be maintained, and if so whether it is barred by the statute of limitations.

That the agreement of Mrs. Walters to compensate Heidy for his work by will was within the statute of frauds, and that no action can be maintained thereon for specific performance or for damages seems clear. Austin v. Davis, 128 Ind. 472 [26 N. E. Rep. 890; 12 L. R. A. 120; 25 Am. St. Rep. 456]; De Moss v. 'Robinson, 46 Mich. 62 [8 N. W. Rep. 712; 41 Am. Rep. 144]; Wallace v. Long, 105 Ind. 522 [5 N. E. Rep. 666 ; 55 Am. Rep. 222]; Pond v. Sheean, 132 Ill. 312 (23 N. E. Rep. 1018; 8 L. R. A. 414] ; 25 Am. L. J. 69.

But if no action can be maintained upon the contract, does it follows that if services are rendered in pursuance of a mutual understanding that compensation shall be made therefor by will, and the party receiving the services dies without making the expected compensation, that the party rendering the services may not recover their value from the estate of the deceased ? Without entering into a discussion of this question we think the right to recover in such case is fully sustained by the following authorities: Robinson v. Raynor, 28 N. Y. 494; Martin v. Wright, 13 Wend. (N. Y.) 460 (28 Am. Dec. 468]; Parsell v. Stryker, 41 N. Y. 480; Jenkins v. Stetson, 91 Mass. (9 Allen) 128; Wellington v. Apthorp, 145 Mass. 69 [ 13 N, E. Rep. 10; 57 Am. Rep. 759).

It is urged that the statute of limitations began to run at the time Heidy ceased to labor on the farm, and hence that his cause of action is barred. Upon the question of the statute of limitations the trial judge charged the jury as follows:

If upon consideration of all the evidence adduced on the trial you find that said agreement between plaintiff and dece.

Carroll County Appeals.

dent as claimed by plaintiff was in fact made, that said plaintiff was to be compensated for said alleged services rendered, and means of support furnished, if any, and that he was not to receive such compensation until the death of Nancy J. Walters, then in such event I say to you as matter of law that his cause of action therefor would not arise and would not accrue to him until the date of said Nancy J. Walters' death, which is admitted to be May 19, 1910, and in such event, plaintiff's cause of action would not be barred by the statute of limitations."

The evidence in this case tends to show that the services which Heidy was to render for Mrs. Walters were to be paid at her death by a provision in her will. The manner in which they were to be paid is a matter of indifference. The question is was the compensation to be made at her death. If Heidy was not to be paid until her death how could a cause of action arise before that time? In the case of Marsh v. Clark, 11 Dec. 564, it is held that where an uncle agreed to compensate his nephew by will for services that the statute of limitations did not begin to run until the death of the uncle. In Hoiles v. Riddle, 74 Ohio St. 173 [78 N. E. Rep. 219; 113 Am. St. Rep. 946), the holding is to the effect that in an action on a contract not in writing which became due by the decease of the debtor the cause of action does accrue until the appointment of an executor or an administrator. We do not think that the fact that the contract in this case could not be enforced specifically makes any difference in the application of the principle announced in Hoiles v. Riddle, and that the statute would not begin to run until the appointment of an administrator for Mrs. Walter's estate. And as the death of Mrs. Walters and the appointment of the administrator occurred within six years prior to the commencement of the suit the statement in the charge that the statute began to run at the death of Mrs. Walters is not prejudicial.

Judgment affirmed.
Norris and Pollock, JJ., concur.

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