
    ANNA REAVIS, Appellant, v. WM. R. REAVIS, Executor, etc., Respondent.
    Kansas City Court of Appeals,
    February 1, 1909.
    ADMINISTRATION: Allowance: Judgment: Estoppel. Plaintiff during tile life of her mother obtained in the probate court an allowance against the estate of her father for taking care of her aged mother, payable quarterly until further orders of that court. After the mother’s death she presented a demand against the estate for further compensation for the increased care and labor of the service during the latter years of the mother’s illness. She had made no application to have the preceding order modified. Held, that the former judgment es-topped the plaintiff. from claiming further sums for services rendered, since she had assented to and received the fruits of said judgment.
    Appeal from Pettis Circuit Court. — lion. Louis Hoffman, Judge.
    Affirmed.
    
      Barnett ■& Barnett for appellant.
    (1) The court erred in giving a peremptory instruction in this case, directing a verdict for defendant and in refusing to give the instructions one and two asked by the plaintiff. It was for the jury to say whether the plaintiff had rendered extra and additional services in nursing her mother which were not included in nor contemplated by the provisions of the contract, which had been made for ,$150 per year. Where the contract is made for a specific sum for taking care of a relative, the contract must be taken as fixing the compensation under the existing circumstances and when by reason of a change in the conditions, the care became greater and more burdensome, the party rendering the services is entitled to additional compensation, and the fact, that the plaintiff was paid compensation for her services as housekeeper does not raise the presumption that the payment covered also compensation for care on account of sickness and a helpless condition. Hopper v. Qldis, 7 Atl. (N. J. Eq.), 349; Fry v.. Fry, 119 M'o. App. 479; Morrow v. Dowell, 116 Mo. App. 289. (2) But the case at bar is more favorable to the claimant than any of the cases cited. Under the evidence, at the time the contract was made for $150 a year, and at the time the application was made to the probate court for payment of this contract price, and at the time the order of the court was made allowing this sum, Mrs. Reavis needed practically no nursing at all, and that allowance was intended to cover and did cover services as housekeeper and of course such incidental care and nursing as might occasionally be needed, but the helpless condition of Mrs. Reavis could not have been contemplated at that time. (3) The order of the probate court allowing plaintiff $150 per year of course is based upon the condition of affairs as they then existed and could not be treated as an order providing for compensation for extra services to be rendered in the future, when it could not be known that such extra services would be required, but if the court had so intended it, it could not have that effect, because no such allowance is asked for in the application. The application is nothing in the world but a claim for services which had already been rendered and the court had no jurisdiction to allow anything else based on that claim.
    
      George F. Longan and Charles E. Yeater for respondent.
    (1) The written petition filed by the plaintiff in the probate court, prayed for an order for the payment of the previous year’s services, “and for all other orders that might seem right to the court,” and the judgment and order recites that tbe plaintiff was present at tbe bearing asking for an order for $150 for tbe past year’s services, and for an order “to pay ber said sum per year so long as sbe continues to render sucb services,” wbicb order was made on tbe evidence heard, and tbe plaintiff is bound by ber petition,, and tbe judgment and order thereon, and cannot dispute tbe same or any finding therein. Cooper v. Duncan, 22 Mo. App. 359; Camden, v. Plain, 91 Mo. 129; Mun-day v. Deeper, 120 Mb. 419; In re Tucker, 74 Mo. App. 335; Macey v. Stark, 116 Mo. 494; Price v. R. E. Assn., 101 Mo. 116; Case v. Gorton, 33 Mo. App. 606; Brown v. Woody, 22 Mo. App. 258; Donell v. Wright, 147 Mo. 647. (2) Tbe order made by tbe probate court provided the amount of future pay to tbe plaintiff until further orders of this court, and the plaintiff, having accepted tbe benefits of tbe same under tbe order of tbe court for over eight years until tbe death of ber mother, without asking tbe further or future order, provided for by tbe court for an increase of compensation, caiinot claim tbe compensation described in ber written claim as additional to that allowed by tbe court, and that even if tbe order and judgment of tbe court' is absolutely void. Arthur v. Izrael, 25 Pac. 81; Denver, etc., Co. v. Middaugb, 21 Pac. 565; Boulder v. Ditch Co., 43 Pac. 530; Daniels v. Tearney, 102 U. S. 415; Dtuff v. Wyncoop, 74 Pa. St. 306; Kile v. Town of Yellowbead, 80 Ill. 211; Brown v. Appleman, 83 Mb. App. 84.
   ELLISON, J.

Plaintiff presented a claim to tbe probate court for services rendered ber mother, Celia Reavis, in caring for and nursing ber during tbe latter years of ber life. Tbe trial court, where tbe case was tairen by appeal, sustained a demurrer to tbe evidence, and plaintiff has brought tbe case here.

Tbe claim is against tbe estate of Daniel Reavis, plaintiff’s deceased father. Daniel made a will wherein lie left bis estate to Celia, bis widow, during ber life, and providing tliat if Celia became unable to care for tbe estate then executors were to do so. Sbe was not able to care for tbe estate and it was placed in tbe bands of ber son Samuel, wbo managed it as executor until bis death, when it was placed in charge of tbe present defendant, William, also a son. At tbe father’s death all tbe children were married and living in homes of their oavii except this plaintiff, and it was agreed among them that plaintiff, besides ber board, should receive $150 per year in caring for ber mother and keeping house. This was paid to ber.by Samuel as long as be lived, but on bis death this defendant thought it more prudent to have orders made by the' probate court for such payments and that vras done. Tbe estate was in arrears to plaintiff from February, 1897, to that month in 1898. Plaintiff then filed tbe following application in tbe probate court:

“Now comes Anna Reavis, and respectfully states to the court, that Celia A. H. Reavis, is tbe widow of Daniel Reavis, deceased, and that- sbe is old and in feeble mental and physical condition and needs tbe constant care and nursing; that for many years, under tbe direction of tbe executor of tbe last will and testament of said Daniel Reavis, deceased, and at tbe re- • quest of Celia A. H. Reavis, this petitioner has taken care and nursed said Celia A. H. Reavis, and done all tbe necessary housework in and about tbe home of Celia A. H. Reavis at the agreed price and sum of one hundred and fifty dollars per year, and that her services so rendered are reasonably worth one hundred and fifty dollars per year; that sbe has received ber pay to tbe 12th day of February, • 1897, and that ber wages due ber for services rendered as aforesaid from tbe 12th day of February, 1897, are still due and unpaid and sbe prays tbe court to make an order on tbe executor of the said estate to pay ber tbe wages due at the rate of one hundred and fifty dollars per year,- and for alh other orders that may seem right to the court.”

This application was duly heard by the probate court and the following judgment was rendered:

“Now, at this day, comes Anna Reavis, one of the heirs of the estate of Daniel Reavis, deceased, and files her petition, ashing for an order on W, E. Reavis, executor of the estate of the said Daniel Reavis, deceased, to pay her tire sum of $150, for her services in waiting on and attending the old and feeble widow of said Daniel Reavis, deceased, for the last year, and to pay her said sum per year so long as she continues to render such services. Both parties being present in court, said petition is taken up and the evidence heard, and the court being fully advised in the premises, and believing said petitioner to be justly entitled to the amounts prayed for,- it is therefore ordered and adjudged by the court that said executor pay her the sum of $150 for her last year’s services, and to pay her the sum of $50 every four months, until further orders of this court, and that said executor be allowed credit on his settlement for same.”

The evidence showed that plaintiff received the money under this order for several years and until her mother’s death. The evidence shows that plaintiff gave faithful attendance on her mother and that during the latter year or more of the mother’s life she was in need of more attention than formerly and that some of the duties devolving upon plaintiff were very onerous. There was no evidence of any other arrangement being made between the parties and no effort was made by plaintiff to have the judgment modified, or rather to have another order made suitable to change conditions which she now seeks to show existed.

Judgments of probate courts are of the same effect and force as those of other courts of record. [Camden v. Plain, 91 Mo. 117; Cooper v. Duncan, 20 Mo. App. 355.] And, in our opinion, plaintiff is estopped by the judgment in this case from claiming sums to be due her for any service covered by the judgment to which the judgment itself shows she assented at the time of its rendition, and the fruits of which the record shows she accepted for several years.

We cannot allow success to plaintiff’s effort to avoid the judgment by the argument that she did not ask to have any further allowance than for the year then past; and that her application did not cover the character of service afterwards rendered. She asked an allowance for that year and “for all other orders that may seem right to the court.” The application stated the mother to be old and feeble in mind and body and that she needed constant care and nursing. No objection was made to the judgment and so long as plaintiff continued to accept of its provisions she must be held to be bound'by its terms.

We have examined the cases cited by plaintiff but do not believe them applicable. The judgment is affirmed.

All concur.  