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April 8, 1980


Appeal from a judgment of the County Court of Grant County: William L. Reinecke, County Judge.

Shirley S. Abrahamson, J. Hansen, J., took no part. Coffey, J. (dissenting).

The opinion of the court was delivered by: Abrahamson

The question on appeal is whether the plaintiff, who engaged in an adulterous relationship with the deceased, may recover from the estate for unpaid salary, wages or other compensation for personal services rendered to the deceased within the two-year period preceding his death. *fn1

Virgil Steffes died without a will on July 17, 1976. His gross estate was valued at $733,644.65. Steffes was survived by a son, who is an heir and the personal representative of the estate, and children of a deceased son, who are heirs. The plaintiff, Mary Lou Brooks, filed a claim against the estate in the amount of $29,200.00 for personal services rendered to the deceased during the last two years of his life (July 17, 1974-July 17, 1976). The estate refused to pay the claim and this litigation ensued. The trial court rendered judgment allowing the claim against the estate in the amount of $14,600.00.

There is no dispute that plaintiff rendered services for Steffes on the farm and in his home and that she gave him excellent nursing care during his lengthy last illness. Steffes' son had been a guest in his father's home before his father's death, and he testified that he had eaten meals cooked by the plaintiff, that his father's home was kept in good condition, and that the plaintiff took good care of his ill father.

The son, as personal representative, appeals the judgment on three grounds: (1) that the facts do not sustain the trial court's findings that the plaintiff rendered services at the request of and with the knowledge of the deceased and with the expectation of compensation; (2) that any services rendered are presumed to be gratuitous because plaintiff lived for more than six years as a member of Steffes' household and that the requirement that there be an express promise to pay for such services was not met; and (3) that the plaintiff cannot recover compensation for the work she performed in the house and on the farm, because Steffes and the plaintiff had engaged in sexual intercourse.

We affirm the judgment of the trial court.


The facts are not in dispute. Mary Lou Brooks, the plaintiff, met Virgil Steffes, the deceased, in 1969, while the plaintiff was working in a tavern, and soon thereafter she moved to Steffes' farm home where she resided until his death. Plaintiff and Steffes were each married to other persons. Plaintiff knew Steffes was a married man, and he continued to be married until his wife died in 1974. The plaintiff had been married in 1963 and had two children. She continued to be married while she lived in the deceased's house, initiating divorce proceedings after Steffes' death. Plaintiff admitted having sexual relations with Virgil Steffes until about a year before Steffes' death. Plaintiff and numerous witnesses testified that neither plaintiff nor Steffes had represented her as Mrs. Virgil Steffes.

According to the plaintiff's undisputed testimony she performed the following chores in the house and on the farm: she cleaned the house, did the cooking, washing, and ironing; she helped fix farm fences; she picked the corn crop; she ran the combine and loaded the corn into a "semi" during late 1974; she chased animals which escaped from the pasture; from the end of October until May (1974-1975) she loaded silage; she aided the deceased in pouring concrete walls around the feedlot; she aided the deceased in remodeling his home by "tearing out partitions" and by setting forms, pouring concrete, and pulling the forms; she wrote all the deceased's checks (with one or two exceptions) under the deceased's direction over the two-year period in question, signing his name along with her initials; and she cleaned and prepared machinery for the April 1975 farm sale. The amount of work performed by the plaintiff may be gauged by the size of the farming operation. In July, 1974, there were 80 head of Charolais cattle and approximately 20 registered Morgan horses on the farm. There were also 325 acres of corn on the farm in the spring of 1975.

The plaintiff also described the nursing care she gave Steffes. In the fall of 1974, his health began to deteriorate. He suffered from headaches and dizzy spells. In March, 1975 he was hospitalized and tests revealed a brain tumor; surgery was performed. Plaintiff stayed in a chair beside Steffes' bed for four days and nights while he was in the hospital. For twenty-eight consecutive days after Steffes' surgery, plaintiff drove him to the hospital for cobalt treatments. Steffes' condition continued to worsen during 1976 and plaintiff's care continued. Plaintiff's testimony relating to the care she gave Steffes during his illness was summarized by the estate's counsel as follows:

". . . In the summer of 1975 after surgery, Virgil still had headaches and had so much pressure from the tumor. He went blind in his left eye. I took him for eye tests and he got a little weak in his right side in 1976. In the fall of 1975 there was only horses left. . . . The remodeling of the house was completed in April, 1976. The slight stroke or weakening of Virgil Steffes was when we were working in the house about three weeks before we moved in. We moved in around April 1st. He called me. He couldn't use his leg it was so weak and his arm. We were still working there. Laudel Culver and Don Urbanek and Bill and Daisy Crubaugh, we were all in the house working that evening and Virgil and I went up to the other place. He said he did not know what was wrong, his legs seemed weak and that. Then I exercised his leg and his arm by working his leg up and down, back and forth, trying to keep the strength in it and his arm. I took him back to La Crosse for a checkup and they took x-rays and the doctor showed me the x-rays where the tumor was coming back and I told him about Virgil's leg and that and he says to exercise it, and so I did and that's when they put him on some pills and he had to have them every four hours. They were to keep the pressure off where the tumor was coming back. Virgil got kidney infection and I took him back, and they gave him pills. They wanted to use a catheter and he said no. I bought a urinal and sat beside him. If he could, for awhile he could help himself when he had to use it and then he got that he couldn't use it. If he wet himself I changed his clothes and if he had an accident in bed, I would change the bed in the middle of the night. This went on during June, 1976. After March, 1976 he had a stroke that affected the whole one side of him and so then in order for him to walk I would slide my foot under his and pick his foot up and walk him that way. He was going to the doctor and the hospital during this time. I took him for his checkups. I would lift him out of the chair and then I would slide my foot under his and put my arm around him, put my arm around him and he would lean on me and we would get to the car that way. Be the same thing at the hospital. If I had to park some place out in the parking lot too far away, then I would go and get or Greg Gebhard might go with me. Sometimes Mike Urbanek rode along and they would run in and get a wheel chair and bring it out and then I would wheel him into the hospital and wheel him out to the car. Then towards the last when his whole side went I couldn't even walk him no more. I went into Bohlman's Drug Store and rented a wheel chair for at the house too. . . . Mr. Steffes died July the 17th '76."

Plaintiff testified that she received the following items from the deceased during this two-year period: food and lodging; approximately $7,200.00 from the sale of horses and cows which deceased had given to plaintiff to take care of; $3,200.00 towards a $4,544.00 Pontiac which was purchased June 22, 1976 and titled in the plaintiff's name.

The trial court summarized the plaintiff's efforts as follows: "Now this lady although she was not a mason did cement work, and although she was not a carpenter she did carpentry work, and although she wasn't an accountant she did bookkeeping work, although she was not a nurse she rendered nursing services."

Plaintiff testified that she expected to receive something for the services she performed for Virgil Steffes during the last two years of his life. The deceased's brother-in-law and friends of both the plaintiff and the deceased testified that Steffes had indicated that he wanted to provide for the plaintiff and that he wanted her to have the house and farm on his death. However, Steffes did not execute a will and sold part of the farm on land contract and gave the purchasers an option to purchase farm property.


The trial court found that the plaintiff went into the deceased's home as a housekeeper, that the housekeeping, farming and nursing services "rendered by her were performed at the instance and with his knowledge of the decedent;" and that the plaintiff expected compensation for these services over and above room and board and the gratuities she received from Mr. Steffes. *fn2 These findings are significant because this court, in a long line of cases, has held that where services are performed at the special instance of the deceased and with his knowledge and are performed by the claimant with expectation of reasonable compensation, recovery may be allowed on the basis of a contract to pay, implied in fact or law. *fn3 The trial court concluded that a contract for services can be implied from the facts and can also be implied in law (quasi-contract) on the ground of unjust enrichment *fn4 and that plaintiff can recover the reasonable value of services rendered to the deceased. *fn5

The personal representative asserts that the evidence does not support the trial court's findings of fact that the services were rendered at the instance of and the knowledge of the decedent and with the expectation of compensation.

The personal representative's brief acknowledges that the plaintiff's services were performed with the knowledge of the decedent and that while he was ill in the hospital, he asked her to stay and asked her to help him so that he did not have to have a catheter. Nevertheless the personal representative argues that the trial court's finding that the services were performed at the deceased's instance and request cannot be sustained because the plaintiff moved to the home of the decedent and became a part of his household and family. The personal representative argues that because all services were performed as a member of the household the performance was not "at the decedent's instance and request" but was expected under the circumstances. The personal representative further argues that plaintiff's expectations were fulfilled when she was compensated by room, board, companionship, and gifts.

In effect the personal representative is asking this court to hold that, because the plaintiff was treated as a member of the household and performed services and because there was no direct evidence that the plaintiff was hired as a housekeeper, the trial court erred, as a matter of law, in concluding that the services were rendered at the decedent's instance and request. The personal representative cites no authority for this proposition of law, and we can find none.

In Kramer v. Bins, 205 Wis. 562, 238 N.W. 307 (1931), the claimant moved into the defendant's home and cared for him and his ailing father. The defendant alleged that the claimant performed services under an agreement that the parties would be married later and that the services were rendered without cost to the defendant. The claimant asserted that she performed services at his special instance and request and that she expected payment. The trial court submitted two questions, inter alia, to the jury: (1) Did the claimant render services to the defendant at the defendant's request, and (2) were the services rendered pursuant to a marriage agreement that each was to work for the other without pay? The jury concluded that the defendant had requested that services be rendered but that the parties had agreed that no compensation should be paid. This court upheld the verdict of the jury. There is nothing in the Kramer v. Bins opinion to indicate that services performed by a person who is treated as a member of the household but who was not hired as a housekeeper are, as a matter of law, expected and cannot, as a matter of law, be performed "at the instance and request" of the defendant. Indeed the opinion indicates that it is for the trier of facts to determine whether services of a person treated as a member of the household are performed at the request and special instance of the defendant and with the expectation of compensation.

In Estate of Voss, 20 Wis. 2d 238, 121 N.W.2d 744 (1963), decedent advertised for a housekeeper and companion. A widow answered the advertisement, a period of courtship ensued, and there were Discussions of marriage. The widow then moved into decedent's home and lived with him for four years, performing services first as his housekeeper and then as his practical nurse until his death. They never married and she never was paid. The trial court allowed her claim against the estate for the reasonable value of her services for the two years preceding Voss's death. In the Voss case the court found "positive evidence" that the services were performed at his request by the placement of the advertisement and her commencing services. However this court did not hold that an advertisement seeking a housekeeper is the only evidence which can show that services were performed at decedent's request and with his knowledge or that there must be direct evidence that a person was hired as a housekeeper in order for the trier of facts to find that services were performed by that person at the decedent's request and with his knowledge.

We conclude there is no legal or factual basis to support the personal representative's argument that because plaintiff was treated as a member of the household the evidence does not support the trial court's findings that she went into Steffes' home as a housekeeper with the expectation of payment for services and that her services were rendered at the instance of the deceased and with his knowledge.


The personal representative next argues that the trial court erred in holding that the plaintiff could prevail on proof of an implied contract. *fn6 The trial court held in the instant case that there was a contract implied in fact and law to pay; it concluded that there was no express contract to pay the full value of the services rendered. *fn7

We start with the principle well-grounded in human experience that where one renders valuable services for another payment is expected. This court has frequently stated that "if one merely accepts services from another which are valuable to him, in general, the presumption of fact arises that a compensation equivalent is to pass between the parties, and the burden of proof is upon the recipient of the service to rebut such presumption if he would escape from rendering such equivalent." Wojahn v. National Union Bank, 144 Wis. 646, 667, 129 N.W. 1068 (1911). *fn8

The personal representative's theory is that a presumption that the services were performed gratuitously applies in the instant case. Where there is a close family or marriage relationship, the law presumes the services are performed gratuitously, and the law will not imply from the mere rendition of services by one family member to another a promise to pay. This presumption of gratuitous service is, as is the presumption that services are rendered for compensation, well-grounded in human experience and rebuttable. *fn9 It is clear that the plaintiff is not related to the deceased by blood or marriage. The personal representative argues that the presumption of gratuitous service should apply anyway because the plaintiff was part of Steffes' family, the term "family" being used to include anyone who is a member of the household. *fn10 The basis for applying the presumption of gratuitous service to persons cohabiting but not related by marriage is that in the ordinary course of life persons living together in a close relationship perform services for each other without expectation of payment in the usual sense because the parties mutually care for each other's needs and perform services for each other out of a feeling of affection or a sense of obligation.

The personal representative asserts that the law in Wisconsin is that if a presumption of gratuitous service applies, the party seeking compensation must prove the existence of an express contract for compensation. *fn11 The personal representative relies on Estate of Goltz, 205 Wis. 590, 594, 238 N.W. 374 (1931), in which this court said:

"The law is well established that 'where near relatives by blood or marriage reside together as one common family, and one of them renders services to another, and such other furnishes him board and lodging or other necessaries or comforts, a presumption arises that neither party intended to receive or to pay compensation for the services rendered on the one hand, or for the board and lodging or other necessaries or comforts on the other; that they were intended as mutual acts of kindness done or furnished gratuitously.' Estate of Kessler, 87 Wis. 660, 664, 59 N.W. 129; Schmidt's Estate, 93 Wis. 120, 67 N.W. 37; Williams v. Williams, 114 Wis. 79, 89 N.W. 835; Estate of Skinner, 189 Wis. 390, 207 N.W. 942.

". . .

"Since the facts of this case bring it within the rule stated and give rise to the presumption of gratuitous services, it was incumbent upon the claimant to prove an express contract by direct and positive evidence or to prove by unequivocal facts and circumstances that which is the equivalent of direct and positive proof of an express contract. Hall v. Finch, 29 Wis. 278; Tyler v. Burrington, 39 Wis. 376; Pellage v. Pellage, 32 Wis. 136; Leitgabel v. Belt, 108 Wis. 107, 83 N.W. 1111."

Cases decided by this court since Goltz have departed from the principle that a presumption that services were rendered gratuitously may be rebutted only by proof of an express contract. This court has upheld judgments awarding compensation on the basis of a contract implied in fact even though the claimant was related to the decedent by blood or marriage.

We do not think it is necessary in the instant case to determine whether a presumption of gratuitous service arises where persons live in the same household in a meretricious relationship, because whether the initial presumption is that services were to be compensated or that they were rendered gratuitously, the final determination of whether the services were to be compensated depends on the circumstances relating to the plaintiff's entry into and her stay in the Steffes' household. *fn12 If an express promise to pay is proved or a promise to pay can be implied from the facts, then the plaintiff is entitled to compensation regardless of the fact that she rendered services with a sense of affection, devotion and duty.

As we explained in Estate of Detjen, 34 Wis. 2d 46, 52-53, 148 N.W.2d 745 (1967):

". . . And, whatever the initial presumptions may be, the final determination, we have said in the Estate of Kuepper (1961), 12 Wis. 2d 577, 107 N.W.2d 621, depends not on a rule of law which awards or denies compensation for services rendered depending on the family relationship of the parties or the house they live in, but upon the existence or ...

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