The opinion of the court was delivered by
Redeield, J.The deposition of Hattie Ross tended to show the declarations of the plaintiff’s wife and of the testator. We know of no rule of law that w.mld render such testimony admissible against other parties. The deposition of Minnie J. Davis was properly rejected, as this court has recently decided. But these depositions seem both to have been admitted against the protest of the plaintiff.
II. It is claimed by the defendant that the plaintiff did not intend to make any claim against his brother until after his decease. If this were so, the law would require him to be of the same mind after his brother’s decease. But we do not think that this fairly appears from the report. The claim mainly arises from the expense of the last sickness of the testator’s wife, and the funeral charges. The report states that at some time these claims were put upon paper.in items. The report states that “ the proof *470is not clear that the charges were made from time to time as the indebtedness as claimed accrued, or that they were originally intended to be charged at all, either on book or otherwise, but at some time * * * the plaintiff had the items of this account on a piece of paper.” A claim recoverable in book action, may exist as a just claim and not be charged, or intended to be charged, on any book or paper. A man may sell a horse, or a yoke of oxen, or do a job of work, and never charge nor intend to charge them on book, and still they may be as justly recoverable .against the party benefited, or his estate, as if charged on book at the time. The report does not state that the proof was not clear that he at the time intended to make claim, or to ask pay for these services. If'he made no charge on paper until after the death of the testator, it is a circumstance, and might be in some'cases a potent circumstance, to satisfy a referee that until that time he purposed to make no claim. But this is evidence merely, to be weighed by the referee.
III. The referee was requested to state in his report what he should do if he was clothed with equity powers. It is difficult to apprehend, on an inquiry whether the estate owed the plaintiff for services rendered and materials furnished, the difference between the settled rules of law and equity, so far as known to us. If the services were rendered and paid for, or rendered as a family gratuity to his brother, he cannot convert them into a claim at law or in equity. We do not think it error that the referee declined to assume equity powers,
IY. The account which defendant presented at a former hearing was properly admitted for the purpose for which it was used. Its weight as evidence was altogether a matter for the referee.
Judgment affirmed.