after stating the case: Under the law, as it has heretofore prevailed in this State, a husband is entitled to his wife’s earnings, the proceeds of her labor, where they are living together as man and wife, and we are not called on to determine whether the principle is altered or in any way affected by our recent legislation on the rights and capacities of married women, notably the statute known as the Martin Act, Laws 1911, eh. 109, by which married women are practically constituted free traders as to all their ordinary dealings, as all the authorities here and elsewhere agree that the husband may confer upon the wife the right to her earnings, and when he has done so, these earnings are then properly regarded as her separate estate, which she is entitled to recover by action in her own name. Price v. R. R., 160 N. C., 450; Symme v. Riddle, 88 N. C., 463; Hinckly v. Phelps, 84 Mass., 77; Bowman v. Ashe, 143 Ill., 649; 21 Cyc., pp. 1385-1395.
There was no necessity, therefore, that the husband should appear as a party, the evidence tending to show that he had' conferred upon the wife, in this instance, the right to earnings acquired under the contract with her father. Eevisal, sec. 408, subsec. 3. The matter, however, is of no especial moment, as the husband, in any event, is only a nominal party, and neither judgments nor arbitration proceedings with parties affecting him alone should be allowed to interfere with her rights to recover, if she has a good cause of action in her own name. Walker v. Phil., 195 Pa. St., 168; Beromo v. Lumber Co., 129 Cal., 232; Kelly v. Hancock, 75 Ala., 229; 23 Cyc., 1242; Womack v. Esty, 201 Mo., 467, reported, also, in 10 L. R. A. (N. S.), pp. 140-146.
*78Again, while services rendered by an adult child for a parent, or a parent for such a child, when living together as members of the same family, are presumed to be gratuitous, the presumption is a rebuttable one, and is overcome by proper proof that they were given and received in expectation of pay (Winkler v. Killian, 141 N. C., pp. 575 and 578), and such proof has been recognized as sufficient when the services are “performed by one person for another under an express or implied promise that compensation is to be provided for in the last will and testament of the recipient,” and no such provision is made. Whetstine v. Wilson, 104 N. C., 385; Miller v. Lash, 85 N. C., 52. And the same principle should prevail where, as in this case, the evidence tends to show that the child provided and cared for an aged father for six years, with the understanding that he was to leave her all of his property, and, before death, he has disabled himself from performance by conveying to others substantial portions of it. In either case the facts in evidence tend to show that the services were given and received in expectation of pay, and the specific compensation agreed upon having become impossible by the voluntary act of the father, a right of action presently accrues, and the child may recover for the reasonable value of the service rendered. Clark on Contracts (2d Ed.), p. 448. And we are unable to see that the arbitration proceedings should conclude the feme plaintiff or in any way affect her rights. That was a proceeding entirely between her husband and her father, growing out of her husband’s accounts and obligations as guardian of the father. According to the evidence, she was not a party to that investigation, and had neither submitted her claims to this arbitration nor authorized any one to submit them for her. It is well recognized that her being a witness before the arbitrators does not have such effect. LeRoy v. Steamboat Co., 165 N. C., 109; Freeman on Judgments, sec. 189; Bigelow on Estoppel (5th Ed.), p. 135.
She is not, therefore, directly affected, and we do not find anything in her speech or conduct which calls for or permits the application of the principle of an estoppel in pais. The estate has not been damaged nor have its representatives been in any way misled to their pecuniary injury by anything she has said or done in the matter. LeRoy v. Steamboat Co., supra; Boddie v. Bond, 154 N. C., 359, and 158 N. C., pp. 204 and 206.
From a perusal of the proceedings, it will appear that on the hearing before the arbitrators the husband represented that his wife had made a claim of him, as guardian, for $1,117.50, for services rendered the father, of which he had paid $586.52, and asked that this amount be allowed him as a voucher on his account as guardian. The arbitrators heard the testimony and only allowed him $196.65, and his wife returned to the husband the balance of the payment. This account should be deducted from her present claim, not because she is barred by the action of the arbitra*79tors, but because sbe has received that much ou account. In addition, there is no mutuality of stake or obligation between the real party in interest in this action, the feme plaintiff, and the defendants, in reference to this award. Not being a party, if the arbitrators had allowed her claim, she could not have enforced it, and no more should she be concluded. It is perhaps the controlling feature in the law of estoppel, and, on the facts in evidence as they now appear, we are of opinion that the interests of feme plaintiff are not affected by the action of the arbitrators, and she is entitled to have her claim submitted to the jury.
Eeversed.