(concurring):
The following state of facts is disclosed by this record as-alleged in the pleadings proved by the testimony and found by the commissioner: The plaintiff, Harrison Cann, was born on the 15th day of October, 1840, and became twenty one on the loth day of October, 1861. From that period up-to the death of his father, on the 5th day of August, 1881, a period of twenty years, he lived with and worked for his father at his home, and unmarried, on the promise and assurance made to him, by his father, who' was the owner of twenty four different tracts of land, that he would leave him by will the home place of about three hundred and twenty one- and three-fourths acres, and worth three or four thousand ’ dollars. In 1879-80 plaintiff became dissatisfied about the-uncertainty of getting the farm or any other compensation for his labor, and got several of his friends to talk to his father on the subject. The father told these intermediaries that plaintiff would be standing in his own light if he left home; that, if he remained at home, and took care of them, he always intended he should have the home place; that he-intended to compensate him. Thus induced, the plaintiff remained with his father and mother down to their death. At the death of the father was found his book of accounts, containing thirty seven pages of items of debit and credit entered for and against some twenty five or thirty different *149persons, and among tliem were two items of charge against plaintiff, Harrison Cann, of three hogs, at two separate times, and the following entry in the handwriting of Jacob Hann:
“1880, April 28. Due Harrison Cann, three thousand dollars, for services since twenty one years of age. Signed Jacob Cann” — all in pencil.
Jacob Cann died intestate on the 5th day of August, 1881, ■leaving his widow, Susan Cann, and five children: Plaintiff, Harrison Cann; John, who died intestate and unmarried ■since his father; Catherine Ziler, wife of George W. Ziler; Elizabeth Largent, wife of Silas J. Largent -and Emma Ambrose, wife of Jesse H. Ambrose.
He left some personal property, about enough to pay all Just claims except that of plaintiff, and two thousand, eight hundred and fifty seven and three-fourths acres of land in twenty four separate tracts.
Plaintiff qualified as administrator on the 31st day of August, 1881, and found in the drawer of decedent the above account book. He tried to get his sisters to convey him the home place, but they failed and refused to go on with it .after three of them had signed the deed.
On the first Monday in March, 1883, he brought a credit- or’s bill against the heirs and administrator. In the bill, is contained a specification of his claim against the estate as follows: “The plaintiff further says that from the time he be•came twenty one years of age, which was on' the 15th day of October, 1861, up to and until his father’s death, a period of twenty years, in pursuance of a contract .between Ms father .and himself, he remained with his father, and worked for him as a common laborer on his father’s lands, his father promising- to pay him a reasonable compensation therefor. .And accordingly, in pursuance of the contract and understanding between his father and himself, his father, on the 28th day of April, 1880, executed to the plaintiff his note on -due-bill for three thousand dollars, ‘for services rendered him by the plaintiff since he became twenty one years of age.’ ” The four heirs, sisters of plaintiff, seem to have recognized to some extent the justice of plaintiff’s claim, and in *150performance of wbat tlie father was supposed to have promised to- do went so far as to- sign a deed conveying the homer place to plaintiff, their brother, but for some reason refused to- go on and complete it.
No one answered the bill except George W. Ziler, the son-in-law who had no interest, and he pleads1 the statute of limitations; but Mrs. L. Largent died during the suit, andher chil-dren5 both infants, answered in 1890 (April 7th), by their guardian ad litem. On the 4th day of April, 1883, an order of reference was entered, referring the cause to Commissioner J. E. Smith to report the claims, hear proof, etc. The-commissioner took and returned the testimony of thirtv one witnesses, filing his report on the 8th day of December, 3 S90. He finds and reports the due-bill of three thousand dollars to be a valid claim against the estate of the said Jacob Gann, deceased, and that plaintiff is entitled to receive the same, with interest from the 28th day of April, 1880. But be further reports that “Jacob Cann was satisfied with the consideration for said due-bill when he executed the same,‘by naming the consideration therein, which consideration is strongly supported and established as valuable by the idence herewith returned;” and the testimony of eight or ten witnesses, who knew his services rendered, put the value thereof at at least one hundred and fifty dollars per year for the twenty years. The report is excepted to by the two daughters and the widow. On the 27th day of November, 3 S91, the cause came on to be heard, and the court, being of opinion that the claim reported in favor of plaintiff was not sustained by the evidence, sustained the exception, disallowed the claim, confirmed the report in other respects, and gave-plaintiff leave to file an amended bill. Wlmt amendment the court deemed necessary does not appear, but I infer it related to the due-bill. This appeal was allowed plaintiff.. I propose to- consider the case first o-n the- theory that the entry found in decedent’s book of accounts is not only ineffectual as a testamentary paper, but is wholly nugatory for any purpose.
First. As to the pleading. Plaintiff’s claim for a quantum meruit against the estate is presented and set forth in *151Ms bill explicitly, specifically, and with all tlie definiteness of detail of individual characteristics that the claim is capable of.
Second. Plaintiff has presented it in a court of equity, the proper forum, for he asks to have real assets descended, administered and applied in satisfaction of his claim. See Code (Ed. 1891) c. 86, ss. 3, 4.
Third. What is the nature and binding force of his claim, if made out by the proof? That there was an express agreement between his father, the decedent, and himself, that the father would devise him the “home place,” or otherwise make him a reasonable compensation for his services, if plaintiff would work for decedent on his lands, and take care of him for life; that he performed his part of the contract, but his father left his part unperformed, unless the duebill found entered on his book of accounts shall be held to be an execution of the contract on the part of the father; if not, he claims compensation for what his services shall be shown to be reasonably worth.
Fourth. What is the evidence of his claim? By the testimony of at least ten witnesses his claim is proved and established, and it is proved that in performing his part of the agreement he spent twenty years of the best part of his life, that is to'say from] twenty one to forty one, and that the deceased accepted these services knowing that plaintiff was relying upon his promise to compensate him in some testamentary way.
Fifth. On this mass.of testimony he had in his favor in the Circuit Court a quasi verdict in the finding and report of a patient, careful, intelligent commissioner, who knew and saw the witnesses face to face, and calls them “intelligent and unbiased.” This, in my view, for the practical administration of justice, establishes the agreement and the performing of it on plaintiff’s part, for such finding of fact by' the commissioner of what he was directed to ascertain and report has in general great weight. Here it bears the marks of deserving what the law accords, and the claim itself bears internal marks of being deserving, and of legal obligation. I do not think that the action of the’ Circuit *152Court has, for the purposes of this Court, done away with the findings of the commissioner, and set the matter wholly at large. That would be unreasonable. It still stands upon its own merits, whatever they may be, as the ascertainment of a fact depending on conflicting evidence, without anything to prevent this Court going into the evidence to ascertain for itself the facts and draw its own conclusions; but there is no presumption against his report merely by reason of the action of the court below. See Roots v. Kilbreth, 32 W. Va. 585 (9 S. E. Rep. 927). Can not the action of the Circuit Court in disregarding or overruling such ascertainment of a fact by the commissioner be appealed from and reviewed in that court, where the rule is constantly laid down? See Oteri v. Scalzo, 145 U. S. 578 (12 Sup. Ct. 895); Kimberly v. Arms, 129 U. S. 512 (9 Sup. Ct. 355); Crawford v. Neal, 144 U. S. 585 (12 Sup. Ct. 355); Medsker v. Bonebrake, 108 U. S. 66 (2 Sup. Ct. 351); Tilgham v. Proctor, 125 U. S. 136 (8 Sup. Ct. 894); Callaghan v. Myers, 128 U. S. 617 (9 Sup. Ct. 177); Camden v. Stuart, 144 U. S. 104 (12 Sup. Ct. 585); Cook v. Railroad Co. (N. Y. App.) (39 N. E. Rep. 2).
1. Silas J. Largent, a brother-in-law, and one of the defendants, says: That four or five months before his death Jacob Cann told him that if his son Harrison continued to live with him, and to do' as he had- done, he intended to leave him the home place and what was on it. This was said while plaintiff was dissatisfied because his father did not give him something to show for his proanise. That plaintiff did continue to live with his father thereafter until the latter’s death.
2. John Turner. He knew the family of decedent during the fourteen or fifteen years before his death. Plaintiff did most of the work; managed the farm. His services were worth two hundred dollars per year. Some four years before he testified, decedent, while on the home place, told him that Tip ( a nickname of plaintiff) was a good fellow, and when he was gone he intended to leave him the home place and all that was on it; that all the others bad left him. Afterwards there was some misunderstanding about it, and at the ihstance of plaintiff he saw decedent about it, to fix it *153•up. He told decedent that plaintiff wanted him to give him •something to show for the place or his' work, lie replied, “I will give Tip something to show for his work after a while.” This was communicated by witness to plaintiff.
3. George Dunn. Plaintiff worked on the farm steadily, fixed up the dwelling house, stables, blacksmith shop, granary, wagon shed, the fences, and put the farm in good order generally. He was a good hand, worked steady, etc. Was worth, managing, working, etc., two hundred dollars per year. This, witness, who worked on the place, knew during a period of ten or twelve years. ‘
4. H. Olay Spohr. Had known the parties all his life. Forty-three years of age. Been there very frequently. Decedent marrid his half-sister. Had conversation ■about the matter;.the last time in 1880-81. Decedent told wittness Harrison, the plaintiff, was the’only one that was of any service to him, and he intended to reward him for it. He intended to give him the home place, and farming implements. He said, the last time the witness talked to him about it, that some one was trying to persuade plaintiff away from him, “but if he stays I will reward him well for it.” At another time he said he would give him the home farm if he stayed.
5. Jesse Ambrose is a defendant and brother-in-law. Had known plaintiff as living with decedent for more than sixteen years, farming for his father; blacksmithing, wagon-making, any kind of work about the farm; putting in crops, gathering, threshing and saving it. He worked at carpentering- — put up buildings on the farm. Farm contains about three hundred acres.
6. Isaiah J. Smith. Had been there frequently, from a day to a week at a time. Had known decedent forty four years, plaintiff twenty five years. Plaintiff was of good habits, sober and industrious. Did all kinds of work. Was worth three hundred dollars per year. In December before decedent’s death (August 5, 1881,) plaintiff complained to him that he had worked a number of years without ever having received any compensation, and that he would leave home if he did not get some satisfaction for the *154services he had rendered; and at plaintiff’s instance bespoke to decedent on the subject Decedent answered that plaintiff stood in his own light if he left home ; that if he remained at home, and cared for them, he always intended he should have the home place; and plaintiff was persuaded, and remained till his father’s death. He always found plaintiff at the head of the labor force and management of the farm. He was engaged in all kinds of farm labor, and did blacksmitliing, etc., besides.
7. Adam Spring. Plaintiff, during the latter part of Jacob Cann’s life, took charge of his affairs,' putting out and gathering crops, and attending generally to the labor on the farm. Was worth about one hundred and fifty dollars per year.
8. Susan Cann, the mother. Plaintiff was born, in 1840. Has never married, but has resided at home, doing all kinds of work; putting in. and gathering the crops; a good deal of work of all kinds; made fence, built stable, corn house, granary, made plows, harrows, wagons. He was an industrious, sober boy. He has spent all his best years on the place, twenty odd years since he has been his own man.
Plaintiff’s own testimony and a part of his mother’s are not given because incompetent. It was disregarded by the' commissioner. This has been enough to convince me that the father, a man of property, owning twenty four tracts of land, held out to the only child remaining with him to the last the inducement of testamentary compensation.
On it the son acted, and steadily, soberly, efficiently gave to his father’s service the first twenty years of his manhood,, reaching from twenty one well up into middle life. The father’s promise miscarried.. That he is entitled to a quantum meruit compensation, I put in evidence this long list of cases. Many of them show not only the general doctrine of legal obligation, but, what is most to my purpose, illustrate the mode, the means, and the force of what has been regarded as safe, satisfying proof in such cases: Grant v. Grant (1893) 63 Conn. 530 (38 Am. St. Rep. 379, note 393); Wainright v. Talcott, 60 Conn. 43 (22 Atl. 484); Reynolds v. Robinson (1876) 64 N. Y. 589; Eaton v. Benton, 2. Hill 576; William *155v. Hutchinson (1850) 3 N. Y. 312 (53 Am. Dec. 301, 306, note); Parsell v. Stryker, 41 N. Y. 480; Newell v. Keith, 11 Vt. 214; Johnson v. Hubbell (1855) 10 N. J. Eq. 332 (66 Am.Dec. 773 784, note); Hawkins v. Ball (1857) 18 B. Mon. 816 (68 Am. Dec. 755, 758, note); Carmichael v. Carmichael (1888) 72 Mich. 76 (40 A. W. Rep. 173, and 16 Am. St. Rep. 528, 534, note); Snyder v. Castor, 4 Yeates, 353, 358; Gary v. James, 4 Desaus. Eq. 185; Walker’s Estate, 3 Rawle 243; Milier v. Lash, 85 A. C. 51; Shakespeare v. Markham, 10 Hun. 322 (72 N. Y. 406); Raynor v. Robinson (1862) 36 Barb. 128, 131 (28 N. Y. 494); Quackenbush v. Ehle, 5 Barb. 472; Campbell v. Campbell, 65 Barb. 644; Martin v. Wright (1835) 13 Wend. 460 (28 Am. Dec. 468, 471, note); Wright v. Tinsley (1860) 30 Mo. 389; Gupton v. Gupton (1870) 47 Mo. 37; Sutton v. Hayden (1876) 62 Mo. 101; Teats v. Flanders (1893) 118 Mo. 660 (24 S. W. Rep. 126); Newton v. Newton (1891) 46 Minn. 33 (48 N. W. Rep. 450); Schutt v. Society (1886) 41 N. J. Eq. 115 (3 Atl. 398); Stone v. Todd (1887) 49N. J. Law, 275 (8 Atl. 300); Whetstine v. Wilson (1889) 104 N. C. 385 (10 S. E. Rep. 471;) Hu-guley v. Lanier, 86 Ga. 636 (12 S. E. Rep. 922, and Am. St. Rep. 487, note); Hudson v. Hudson, 87 Ga. 678 (13 S. E. Rep. 583); Wallace v. Long, 105 Ind. 522 (5 N. E. Rep. 666); Day v. Wilson, 83 Ind. 463; Ham v. Goodrich, 37 N. H. 185; Emery v. Smith, 46 N. H. 151; Leslie v. Smith, 32 Mich. 64; Sutton v. Rowley, 44 Mich. 112 (6 N. W. Rep. 216); Welch v. Lawson, 32 Miss. 170; Bender v. Bender, 37 Pa. St. 419; Clark v. Davidsson, 53 Wis. 311 (10 N. W. Rep. 384); Howard v. Brower, 37 Ohio St. 402; Ellis v. Cary, 74 Wis. 176 (42 N. W. Rep. 352); Manning v. Pippen, 86 Ala. 357 (5 South. 572, and 11 Am. St. Rep. 46, note); Wellington v. Apthorp, 145 Mass. 69, 72 (13 N. E. Rep. 10); Taylor v. Wood, 4 Lea, 504; Frost v. Tarr, 53 Ind. 390. By these authorities I show that, where there is an express agreement between a father and a son that the father wall devise the home place to the son, or in some testamentary way compensate him for his services, if the son will attend to and take care of him for life, and the son performs his part of the agreement, he is entitled to recover upon a quantum meruit for his services if the father’s part of the contract is unperformed. See Grant v. Grant (Conn.) 29 *156Atl. 15 (38 Am. St. Rep. 393) note; Hudson v. Hudson, 87 Ga. 678 (13 S. E. Rep. 583)—that it is a valid contract, tbougb not in writing, not forbidden by the statute of frauds, and not barred by the statute of limitations, until the prescribed period has run since the death of the promisor before the bringing of the suit. Raynor v. Robinson was a case much like this in its facts; was discussed and decided in the surro.gate’s court, in the Supreme Court (3862) 36 Barb. 128, and •finally in the court of appeals, 28 N. Y. 494, the latter holding that where services are rendered by one person to another in pursuance' of a mutual understanding and agreement between the parties that conpensation shall be made for them by will, and the party receiving'the services dies without making the expected compensation, the party rendering the services is entitled to compensation out of the estate of the deceased as a creditor for the value of the services. Robinson v. Raynor (1864) 24 N. Y. 494; Bish. Cont. | 224; 2 Chit. Cont. (11th Am. Ed.) p. 798, note g; 2 Whart. Cont. § 719; Lawson, Cont. § 38; Stewart v. Small (Ind. App.; 1894) (38 N. E. Rep. 826).
Sixth. But there may be danger of abuse. In many cases there is a peculiar danger of abuse, requiring, therefore, peculiar guards against it; requiring the court to be on its guard not to let things done under the impulse of affection in discharge of a moral duty, usurp the place of a legal ■duty discharged, and thereby create a legal right. See Houck v. Houck (1882) 99 Pa. St. 552, and many cases of like kind. See 2 Pars. Cont. (8th Ed.) pp. 50, 51, notes, and casesi cited. It may in some cases have been held to create a quasi obligation to compensate, raised by law out of the special circumstances of particular cases, but by the great weight of authority has not reached that point. The law requires, under such circumstances, the sanction of an agreement to compensate, express or by inference fairly and clearly arising out of what is said and done by both parties, that if the one shall work and care for his aged parent so long as he shall live, he, the father, will compensate the son in some testamentary way; and if in pursuance thereof the son performs his part of the agreement, which the father adopts *157and enjoys as long as lie lives, but neglects to do Ms part, or bis testamentary paper attempted in execution thereof miscarries, or from any cause proves ineffectual, then the son’s-riglit to action against the estate accrues,% and the only question is, what does he deserve to have as the value of the services rendered? On what possible' ground can the su-peradded moral element on his part, or the abortive testamentary paper on the father’s part, destroy or impair his legal right to a quantum meruit compensation?
Seventh. But it is not obnoxious to clause seven of section one of chapter 98 of the Code, which forbids the bringing of an action on an .oral agreement that is not to be performed within a year? The answer is, “No, because complete performance. om the part of plaintiff within the year, as by the death of his father, is' not impossible within the terms of the agreement.” And this answer was given in Peter v. Compton (1694) and has been adhered to ever since. See Peter v. Compton, 1 Smith, Lead. Cas. (9th Am. from 9th Eng. Ed.) 586, 591; Bish. Cont. § 1284; Kent v. Kent (1875) 62 N. Y. 560, Wellington v. Apthorp (1887) 145 Mass. 69, 72 (13 N. E. Rep. 10; Larimer v. Kelley, 10 Kan. 298; Jilson v. Gilbert, 26 Wis. 637.
Eighth. It is not barred by the statute of limitations, for the statute does not commence to run until the right of action accrues, and such right did not accrue until after the-promisor’s death, for that was the time fixed; and plaintiff continued the performance of his part of the agreement up to-rne happening of that e\<;nt. He then brought suit will tin two-years — five years being the bar. Kent v. Kent, cited above; Reynolds v. Robinson (1876) 64 N. Y. 589; Patterson v. Patterson, 13 Johns. 379; Price v. Price (1840) 1 Cheves, Eq. 167; Stone v. Todd (1887) 49 N. J. Law, 275 (8 Atl. 300). Where the promisee serves until the death of the promisor, this question presents no difficulty. It only arises where the promisor breaks or repudiates hist contract before death and dismisses the promisee. See Johnson v. Hubbell, 10 N. J. Eq. 332 (26 Am. Dec. 773, 785, note). See case of Jincey v. Winfield, 9 Graft. 708, 718. In this case the bar of the statute was applied to part of his claim, because he stopped ren--*158•dering Ms services and sued the testatrix in her lifetime on the ground that she had disabled herself from making the will promised. It is an authority on the main point. On a promise to pay for a thing by request it begins to run from the death of the person promising. Bish. Cont. § 1354; Eagan v. Kergill, 1 Dem. Sur. 464; Schouler, Wills (2d Ed.) § 453; Schouler, Dom. Rel. (3d Ed.) § 274. See 2 Pars. Cont. (8th Ed.) pp. 50, 51, notes and cases 'cited. The statute does not begin to run until the cause of action accrues, and this is the provision in all our statutes. The creditor must first have a perfect right to prosecute his demand according to the civil law. Evans’ Poth. 404; 1 Wood, Lim. (2d Ed.) p. 324. § 119, notes. See Tuckey v. Hawkins, 4 C. B. 655; Sanders v. Coward, 15 Mees. & W. 56. So, where a contract for services provides that payment shall be made by provision in the employer’s will, a right of action does not accrue until after the employer’s death, because up to that period there has been no breach. Nimmo v. Walker, 14 La. Ann. 581. So I have found it laid down in all the cases and books which I have been able to consult that touch upon the subject, and see no reason why this should be an exception to the general rule.
Again, is this due-bill a testamentary paper? It is proven to be wholly in the handwriting of the deceased, Jacob Gann; the body of the instrument as well as the signature. And, taken in connection with what he declared he intended to do by way of compensating plaintiff for his services, and the fact that it was never delivered, it would seem that he intended it to take effect after his death.
The law is well settled that the form is immaterial, or the fact that it is also an obligation made on valuable consideration, if it was intended to take effect after death; it may be regarded as testamentary for purposes of probate. Ex parte Day (1851) Bradf. Sur. 476, 482; Pollock v. Glassell (1846) 2 Gratt. 439, 455. No, matter what the form given or intended, provided it be the inteniion of the deceased that it should operate after his death. Roberts v. Coleman, 37 W. Va. 143, 151 (16 S. E. Rep. 482). Whether the maker would have called this a testamentary paper or not is one question. *159Whether it shall operate as such is a distinct question, that is to be determined by the provisions of the instrument. It depends upon its contents, not upon any declaration of the maker. Habergham v. Vincent, 2 Ves. Jr. 231; Patterson v. English, 71 Pa. St. 454; Schouler, Wills, § 272. To determine this, the instrument must be read by the light of all the surrounding circumstances, and, where the instrument itself is silent or equivocal, collateral evidence is admitted in order to show wheher or not a testamentary disposition was actually intended. Id. § 273. In this case there is nothing in the scope or bearing of the contents of the instrument that indicates that it is to operate after death, but, in the view I take of it, this is wholly unimportant, for, if genuine, it is certainly competent as an admission on the part of the decedent that he owed plaintiff three thousand dollars for services since he became twenty one years of age, because it is an original entry, shown to be wholly in the handwriting of deceased, against his interest at the time made by him in his book of accounts produced and proved. This is upon the ground that, being against his own pecuniary interest, he could have no motive to make a false entry. Barton v. Scott, 3 Rand. (Va. 399; Gale v. Norris (1841) 2 McLean, 469, Fed. Cas. No. 5,190. See Higham v. Ridgeway, 10 East, 109, 3 Smith Lead, Cas. (9th Am. from 9th Eng. Ed.) 1607, 1617. That this is a good reason for admitting an entry, made by a person deceased, to^be evidence, numerous decisions have established beyond all controversy, made since the case of Higham v. Ridgway, especially against those claiming under and in privity with the deceased. See Mahaska Co. v. Ingalls (1864) 16 Iowa, 81; Rand v. Dodge, 17 N. H. 343; Harriman v. Brown, 8 Leigh, 697; 1 Greenl. Ev. §§ 171, 212; Chamberlayne’s Best, Ev. § 518; 2 Am. & Eng. Enc. Law, 467m. That original entries on plaintiff’s books may, in certain cases, be evidence for himself, see Downer v. Morrison (1845) 2 Graft. 250. See, also, Griffin v. Macauley (1851) 7 Gratt. 476. Nor is it material that the document has never been delivered or communicated, so as to> influence conduct, so as to be effectual as an express promise or as an acknowledgment from which a promise may be implied, or so as for any reason to create *160no obligation; it is nevertheless competent and admissible as evidence. Hickey v. Hinsdale, 12 Mich. 99; Ayres v. Bane, 39 Iowa, 518; Atkins v. Plympton, 44 Vt. 21; Reis v. Hellman, 25 Ohio St. 180; Huffman v. Cartwright, 44 Tex. 296. It is-certainly competent evidence to prove the contract set up by plaintiff in his bill. It is an admission against the pecuniary interest at that time of the party who-made the original entry in hi» book of accounts, proved by producing and proving the original book and the entry to be In his handwriting, and the signature in a suit wherein his heirs at law and privies in estate are defendants. “The universal experience of mankind testifies that as men consult their own advantage, whatever they say or admit against their interest or advantage may, with tolerable safety, be taken to be true against them, at least until the contrary appears.” Best, Ev. § 519.
I concur in reversing the decree complained of, and in directing .the ascertainment of a quantum meruit compensation, 'although my own opinion is that that was sufficiently ascertained by the commissioner.