The original statement of claim was of a twofold character. It was for necessaries furnished to an insane person, which were reasonably worth $6,084; it was also for breach of a special undertaking by the conservator that, upon the ward's death, $6,000 would be paid from her estate in compensation for these same necessaries. It is expressly alleged that they were in fact furnished under an agreement made in consideration of this promise of the conservator. Had the promise been made by the ward, while sane, instead of her conservator, it would have excluded any resort to an implied contract. A special agreement to accept $6,000 for services to last during a lifetime, and which therefore might terminate in a month or might run through half a century, is inconsistent with any right to ask payment for their actual value. Donahue's Appeal, 62 Conn. 370, 375. That the promisor was not the person to be immediately benefited makes no difference as respects this rule of law. If the *Page 172 claimant was entitled to compensation, it was an agreed sum, to be derived from a particular source.
A claim against the estate of a deceased person must rest on some obligation which he voluntarily assumed, or which was cast upon him by law. No suit could have been maintained against Mary E. Merwin during her lifetime for the value of the necessaries in question; for they were furnished under a special contract with another, and on the credit of a particular fund, to become available upon her decease. Mass.Gen. Hospital v. Fairbanks, 129 Mass. 78. No obligation was ever assumed by her or by her conservator to provide compensation for them out of her estate in his possession. If the claimant had any remedy, it was against the person on whose promise and representation she relied.
It is contended that the presentation of this claim to the commissioners on the ward's estate was justified by General Statutes, § 1049. If that statute applies to conservators, it certainly cannot be invoked in a proceeding to which a conservator is in no way a party.
It follows both that the demurrer to the original statement of claim was properly sustained, and that there was error in refusing leave to file the statement which it was proposed to substitute.
The latter is for the reasonable value of necessaries furnished to the ward, in the expectation of compensation out of her estate, and with the knowledge and assent of the conservator. If its averments can be read as importing that the conservator neglected to make any other provision for watching and nursing her, they are a sufficient foundation for the claim. Whether they can be thus read was not a matter to be summarily decided by denying an opportunity to present them in regular course to the consideration of the court. Freeman's Appeal, 71 Conn. 708.
The claimant had a statutory right to file her "substitute statement of claim," unless it was one "changing the ground of action." General Statutes, § 1029. She had attempted to combine two grounds of action in her original statement. In that which she proposed to substitute for it, she relied on *Page 173 one of these still, but put it forward in connection with certain additional circumstances. The case is unlike Donahue'sAppeal, supra, in which a claim for breach of an executory agreement, made in consideration of a promise to perform services, was held not so amendable as to make it one for the reasonable value of services rendered. Here the actual performance of valuable services was explicitly alleged as a ground of recovery, both in the original and the amended statement, and reiterated in the bill of particulars. See Practice Book, p. 12, Rule II, § 3; Brewster v. Aldrich,70 Conn. 51.
There is error, the judgment is set aside, and the cause remanded with directions to reverse the order denying the motion to amend.
In this opinion the other judges concurred.