A person is not bound to maintain the children of his wife by a former husband. (Gay v. Ballou, 4 Wend. Rep. 403.) Not being bound to provide for them, or furnish them with any support, he is not entitled to their services provided they choose to live elsewhere; and in the latter case he cannot recover for their services, either in his own right or in that of the mother. (Commonwealth v. Hamilton, 6 Mass. Rep. 273, 275. Freto v. Brown, 4 Id. 675. Worcester v. Merchant, 14 Pick. 510.) While the mother remains a widow she is bound to provide for her children, and is entitled to control them while under age, and to collect their earnings while in the service of others. But when she marries, her legal capacity is gone, and she can no longer control the persons, or property, or earnings, of her children.
In this case, there is Ho evidence of any express promise to pay, and no proof that there was any expectation, on either side, while the services were being performed, that payment was to be made or demanded. The remark proved to have been made by the defendant, as the plaintiff was about leaving, that he did not wish him to leave, and was willing to pay for what he had done, amounts to nothing more than the expression of a willingness, on the defendant’s part, to pay the plaintiff for his services if he would stay with him. It furnishes no evidence of any prior understanding or agreement, but, on the contrary, rather rebuts the presumption, as the remark was not particularly addressed to the plaintiff, and no question was raised or suggested by him about any pay. Indeed, there is nothing in the. case to show that, up to this time, the plaintiff *124had ever thought of asking pay of the defendant. The case must, therefore, turn entirely upon the question whether, under the circumstances of this case, the law will imply a promise on the part of the defendant. I think there can be no doubt that it will not. It is clear, from the case, that the plaintiff lived with the defendant as a member of his family, in all respects, and was treated by the latter as one of his own children. That although the defendant was not bound to provide for him, or furnish him with any support, and was not entitled by law to claim the plaintiff’s services if he' had not chosen to render them, yet that he did in fact support and maintain him in his family, and as a member of it, and stood in loco parentis to him. The books are full of cases to show that, under such circumstances, the law will not imply á promise to pay for services thus rendered, or permit a recovery, Unless an express promise is shown, or something to prove that such was the expectation on both sides. (Robinson v. Cushman, 2 Denio, 149. Andrews and wife v. Foster, 17 Verm. Rep. 556. Fitch v. Peckham, 16 Id. 150. Swires v. Parsons, 5 Watts & Serg. 357. Wiers. v. Wiers’ adm. 3 B. Monroe, 645. Candor’s appeal, 5 Watts & Serg. 513. Willis v. Dun, Wright, 134.)
In the case of Andrews and wife v. Foster, the plaintiff’s wife, who was a niece to the defendant’s wife, went to live with the defendant at the age of nine, and lived with and was brought up by him until she came of age, when the defendant told her she was free to go, but if she staid with him he would do well by her. She continued to reside with the family as before, four or five years, when she left; and after her marriage, joined with her husband in an action for her services after she became of age. No accounts were kept, on either side, and no request made for payment When she left. And the court held that she could not recover, as she lived there after, as before, her majority, as a member of the family, the defendant standing in loco parentis. That the law would not imply a promise to make a pecuniary compensation under such circumstances.
The argument that the defendant could not lawfully claim the plaintiff’s services, and was under no obligation to maintain *125and take care of him as a parent, does not help the plaintiff’s claim in this case. The case turns upon different considerations of law and public policy. The defendant voluntarily took upon himself the duties of a parent, and, for aught that appears, discharged them faithfully. The' plaintiff accepted the defendant’s shelter and protection, and rendered his services and obeyed the defendant’s commands, voluntarily, as long as he chose, and no longer. He carinot now be permitted to turn it into a contract and recover, because, forsooth, he may be able to prove that his services were worth something moré than his maintenance and support. The relation in which the parties stood, for the timé being, forbid it; unless it 6an be shown that there was an express agreement or definite understanding at the time. Nor is it of the least consequence that the plaintiff was an infant, and incapable of binding himself by any express promise or agreement; as there was nothing of the kind between the parties; and unless the law implies a promise on the part of the defendant, there can be no recovery. And we have seen that, under the circumstances of this case, no promise is implied on his part. The fact of his standing in loco parentis effectually repels all presumption of service for hire or, wages, and renders an express promise indispensable to the maintenance of the action. (Chit. on Cont. 5th Am. from 3d Lond. ed. 148. Cooker v. Martin, 4 East, 76.) The family relation or compact is not that of service tin the one hand, or protection and support on the other, for pecuniary reward. It rests upon a foundation essentially different in all its parts, and is a relation which all just and politic laws should be careful to cherish and protect.
The report of the referees should be set aside.
Maynard, P. J. and Selden, J. concurred.