the opinion of the Court was delivered by
Green, J.:The claim of the appellee in this case, which was allowed by the auditor, was not a claim for personal services, or for boarding against the estate of the decedent, and hence is not necessarily within the rule which requires direct proof of an express contract. It is a claim for rent of a house belonging to the appellee, and which was occupied by the decedent for a number of years before his death. The relationship between the parties was that of uncle and niece. The latter purchased the property from the former for a stipulated price, which was paid in money, and from that time on the niece was the owner of the premises. Prior to that date, the uncle had lived with the niece in the same house, and had paid all the expenses, and furnished the house and ground attached in addition. In 1866, at his request, she bought the house and lot from him at the price fixed by himself — $700—which she paid him in money. When this was done, he said to her, “I will expect a home there as long as I live, and I will pay all expenses as I have been doing.” There was no contract that he was to have the right, absolutely, to live in the house during the z’est of his life as a part of the considez’ation of the’ sale. This would be a charge on the property if it had been agreed upon in proper form, al*175most equivalent to an estate for his own life in the lana. But there was no such agreement. The expression that he would expect a home there does not necessarily import anything more than a desire on his part to continue living with his niece as he had been doing, he to pay all the expenses. As to one part of the expenses, the relation of the parties was changed. Up to the time of the deed he had provided the house and lot at his own expense. After that time she provided them at her expense. She had parted with her own money in order to enable herself to do this, and thereby deprived herself of the income from the money which she paid to her uncle for the property. That income she lost and he gained, and in that respect he did not continue to pay all the expense as he had been doing, and as he agreed to do in the future, unless he paid her an equivalent in money for the use and occupation of the house. This he did not do, and the present claim is founded upon the theory of a legal obligation to make compensation for the use and occupation of the premises for the six years preceding his death. We think in view of the circumstances that the conclusion of the auditor that there was a liability for the use of the premises is correct. The mere fact of the use and occupation would, as between strangers, create an implied liability. Here, while the parties were not strangers; they were not closely related, and the subject of the claim is not one which comes within the prohibited class requiring an express contract and positive proof. On the contrary, there was sufficient in the spoken words which passed between the parties to carry the case to a jury had there been a common law action on the question of a contract relation. The auditor has found, practically, that there was a contract to pay for the use of the house and lot as a part of the expenses which the decedent agreed to pay as an entirety. We cannot say there was error in this, or in the conclusion that the mere relationship of uncle and niece would not suffice to rebut the presumption of an implied contract in view of all the circumstances of the case. The action of the court below was a concurrence, in the findings of the auditor, both in fact and law, and we are not disposed to interfere with them.
Decree affirmed at the costs of the appellants.