It is violating no confidence to say that in reaching a decision in this case the members of this court have had difficulty and no one of us has that certitude of opinion which ordinarily attends in disposing of appeals.
The errors assigned upon which I differ from the conclusions of my associates are those relating to the admission of the two wills of testatrix, her deed to James Timmons and Ruby Timmons and the charge of the court as to the purpose for which they were admitted. Plaintiff's action as eventually submitted to the jury was upon an implied contract on quantum meruit.
The action, being on quantum meruit, was for the reasonable value of services rendered under the contract pleaded which, manifestly, was the full value of such services. Plaintiff prayed for a judgment of $5,575.70 with interest and the verdict and judgment in her behalf are in that sum in its entirety.
The instruments under consideration are plaintiff's exhibits A, B and C. The first is the will and testament of H. Alice Calhoun, executed on October 18, 1929. By the third item thereof a life estate in all real estate of testatrix was given to her husband, Alvah *Page 375 Calhoun, and at his death a remainder in such estate "to James Timmons and Hannah Gorey [plaintiff herein] in joint ownership during their natural lifetime, then at their death to their legal heirs." By the fourth item, Hannah Gorey was bequeathed, subject to the life estate of the husband, the sum of $1,500. On or about November 15, 1936, plaintiff went to live with H. Alice Calhoun. The latter's husband had died, probably in March 1936, and the first conversation between plaintiff and testatrix, during which the will was displayed, occurred about a month after his death but the will had been executed almost seven years prior to this conversation.
The second will was dated June 6, 1941, a little less than five years after plaintiff had gone to live with testatrix. By the terms of this will, under the third item thereof, Hannah Timmons Gorey was bequeathed $1,000 and the twelfth item provided that testatrix's farms and her house in West Jefferson should be sold and the proceeds from these properties divided, share and share alike, among nine named beneficiaries, one of whom was Hannah Timmons Gorey. The deed from H. Alice Calhoun to James Timmons and Ruby Timmons was dated July 28, 1943, and transferred two farms in Jefferson township, Madison county, Ohio, one of 90.40 acres, the other of 92.35 acres.
There is no claim that the plaintiff had any knowledge during the lifetime of H. Alice Calhoun of the execution of the second will or the deed.
The second will has been probated and the estate is being administered by defendant executor.
The nature and extent of testatrix's estate do not appear nor did the jury have any means by which it could determine the relative value of the bequest and devise to plaintiff in the first will as compared to the bequest and devise in the second will and the jury was *Page 376 specifically charged that the "documents are not in issue * * * as to their merit or validity as such, * * *." Testatrix died on January 5, 1944.
Independent of the wills and the deed, there is substantial controversy in the record upon every issue made by the pleadings. The nature and extent of the services rendered, the state of health of H. Alice Calhoun, whether she did her own work, and the extent to which she was incapacitated by her sickness are at variance upon the record. Whether plaintiff was a member of the family and maintained her separate establishment, in part at least, or was in the service of H. Alice Calhoun is at issue. So that, upon the whole record, the effect which the jury gave to the wills and the deed may well have been the deciding factor in the verdict. If they were improperly admitted, it was prejudicial to the defendant.
In Richards v. Cleveland Jewish Orphan Home, 22 Ohio App. 475, it was held that error is prejudicial unless there is some fact in the record which affirmatively shows that it is not prejudicial. The case of Ridenour v. Biddle, 10 C.C. (N.S.), 438, 20 C.D., 237, holds, "where error is shown — prejudice is presumed." See, also, Lake Shore Michigan Southern Ry. Co. v.Litz, 18 C.C., 646, 6 C.D., 285; Gentile v. Cincinnati St. Ry.Co., 4 N.P., 9, 6 O.D. (N.P.), 111; Baldwin v. Bank of Massillon,1 Ohio St. 141; Lowe v. Lehman, 15 Ohio St. 179; Taylor v.,Boggs, 20 Ohio St. 516; Board of Education v. Mills, 38 Ohio St. 383.
At the time that the first will was exhibited to the plaintiff by H. Alice Calhoun, it had been a completed and executed instrument for seven years. Any purpose which actuated H. Alice Calhoun in making the plaintiff her beneficiary had operated and had been effective long before the conversations during which the will was displayed. The jury was given the right to *Page 377 draw an inference that from the exhibit of this will to plaintiff under the circumstances she was to be paid for the services to be rendered. What inference may be drawn from these facts? To indulge any other than that there was created a friendly atmosphere between the parties because of the beneficence of H. Alice Calhoun already indicated, as appeared in her will, is but speculation. It is not urged that H. Alice Calhoun said, nor may it be implied, that if plaintiff would come to live with her she would retain the provisions of her will as they then were and would leave it unchanged at her death, or that if plaintiff would not come to live with her she would revoke the will. To permit the jury in this situation to consider the wills "as they reflect, if they reflect at all, on the issue * * * whether or not the services of the plaintiff were rendered gratuitously" was prejudicial to the defendant for the reason that the jury was permitted to draw an inference which could not logically be drawn. I might conclude at this point because if the first will was inadmissible, the second will and deed could not be, although the converse of this proposition is not true.
The existence of the second will and of the deed was never known to the plaintiff. The second will, if it had any probative effect at all, which on the cause of action as pleaded it did not, permits the inference that the original contract incident to the first will, if made, had been disregarded by testatrix and that she had modified this agreement to the extent that she changed her bequest and devise to the plaintiff in the second will. The deed did not reflect at all upon the question whether the services rendered by the plaintiff to H. Alice Calhoun were gratuitous or otherwise. Its only effect was to show that testatrix had thereby decreased the value of her estate and of the devise in item 12 of the second will. *Page 378
If I am mistaken in concluding that the wills should not have been admitted and it be assumed that the first will has some value upon any material element in this case and that it tends to establish that the benefits thereof were to be assured to the plaintiff if she came to live with H. Alice Calhoun, then the plaintiff may not be heard to say, if testatrix performed her part of this agreement, that her estate should not have the benefit to the extent of that performance.
Let us assume that an express oral agreement was established whereby, for the services to be rendered by plaintiff, H. Alice Calhoun was to make a will containing the identical provisions found in her first will. Let us further assume that such a will had been executed by decedent, and upon her death was probated and her estate was administered according to her will. Could plaintiff maintain a recovery for the full value of services rendered to decedent without regard to the benefits which she received under the will made pursuant to the contract? I believe the answer is obvious.
In Reynolds v. Robinson, 64 N.Y. 589, 593, 594, it was held that where services are rendered in consideration of the promise to compensate therefor by bequest to the person rendering them, and a bequest is in fact made, an action may nevertheless be maintained to recover for the value of the services rendered, and in such action the main question to be determined is whether the provision in the will was sufficient to pay for the services. If it is, the plaintiff must be defeated in the action. If not, then plaintiff is entitled to recover the balance after deducting the legacy.
This case is not in the class of those of Walters, Admr., v.Heidy, 1 Ohio App. 66; Ortman, Exr., v. Ortman, 17 Ohio Law Abs., 525; Miner v. Grove, Admr., 30 Ohio Law Abs., 93, andHenderson v. Stroup, Exr., 32 Ohio Law Abs., 605, for the reason that the cause of *Page 379 action upon which plaintiff here elected to proceed is not based upon a promise to will property for services to be rendered. In each of those cases there was a promise to pay for services rendered by the making of wills and a failure on the part of the promisor to perform. In the instant case, if the second will means anything, it shows a performance by the promisor pro tanto of the agreement to make a will, a theory which must be given consideration if the wills and deed are to be brought into evidence.
There cannot logically be a separation between the contract to make a will, if any, implied from the transaction respecting the first will and one element of that contract, namely, a purpose on the part of the testatrix to pay for the services by making the will. This is true even though a suit in specific performance or an action for damages may not be maintained on the contract to make a will. Herein is found further prejudicial effect in admitting the first will as it may reflect upon the question whether the services were rendered gratuitously. A juror could not have made such distinction. In fact, it may not be made.
When this first will was admitted, followed by the introduction of the second will and the deed, it was prejudicial to the defendant because in all probability the jury reasoned that under the first will, if not revoked, plaintiff would have received a much greater proportion of decedent's estate than she received by the second will which became effective, and that the deed removing two farms from the decedent's estate further reduced that which plaintiff would have received had the contract been carried out. Of course, there is nothing in the record upon which the jury could properly have made a determination as to the comparative value of the first devise as related to the devise to plaintiff in the second will, because neither *Page 380 the legal effect thereof nor the value of the respective devises was known to the jury.
The case of Fell, Admr., v. Carter, 16 C.C. (N.S.), 241, 26 C.D., 511, is cited and discussed by counsel. In that case the action was to recover compensation for personal services rendered a deceased person, but there was no claim that there had been any promise to compensate by will. The defense sought to show payment for the services by introducing the will of decedent wherein the sum of $400 was given to the plaintiff. Manifestly, the will was not admissible. The analogy to be drawn between the cited case and the instant cause is that here the cause of action apparently proceeds upon the theory of an implied contract to pay for services rendered without respect to the wills. If the case was restricted to that theory, then the defendant could not offer provisions for plaintiff in the second will in partial or total satisfaction of plaintiff's claim. However, plaintiff's bringing of the wills into the case requires that, if properly presented to the jury, the full effect of the second will and the provisions thereof under all the circumstances be adjudicated under a proper charge. The jury had not sufficient evidence or sufficient information as to the law controlling its determination of the issues brought into the case by the admission of the wills.
The judgment should be reversed and the cause remanded with opportunity to the parties to try the case upon the proper theory, so that the court might have opportunity to fully acquaint the jury with the law controlling its deliberations. *Page 381