The surrogate has found as matter of fact, that Jonathan Robinson performed services for his father and mother for the whole period of twenty-five or thirty years, for which it was mutually understood between them that he (Jonathan) should receive compensation by a devise of the homestead farm.
No express agreement is proved or pretended, on the part of Jonathan, to perform services for his father and mother, or on the part of the father that he would pay therefor at any time or in any manner. The evidence relied on to establish the liability is a recognition of it by the father, and a promise given that he would convey the farm in satisfaction.
The law implies a promise to pay when the services are rendered at the request of the defendant, and when there is no request proved, but they are rendered with the knowledge and tacit assent of the defendant. (James v. Bixby, 11 Mass. Rep. 34;Farmington Academy v. Allen, 14 id. 174.) But however valuable the services rendered may be, yet if they are rendered without the privity or consent of the person for whom they are rendered, the law affords the party rendering the service no redress. (Bartholomew v. Jackson, 20 John. 28.)
These rules apply in actions between persons not members of the same family. As between them, different rules are applied, (Williams v. Hutchinson, 3 Comst. 312;) or rather a higher degree of evidence is required to establish the liability in the one case than in the other. (Moon v. Moon, 21 How. Pr. R. 211.) *Page 506
If a child who lives with a parent after it becomes 21 years of age, and renders service and is treated as a member of the family, no agreement to pay being proved nor account kept of board or clothing, the law will not presume an agreement to pay, but will presume the services to have been rendered gratuitously, or at least to be fully compensated by the support furnished. (Williams v. Hutchinson, 3 Comst. 312.)
But again, when the person rendering the service is a member of the same family at the time the service is rendered and is a near relative, so near, and the service of such a nature, that their performance would be prompted as well by affection as by desire for gain, the law will not imply a promise to pay, unless the circumstances are such as clearly to rebut the presumption that they were rendered gratuitously. (1 Parsons on Cont. 529 and notes.)
The services in the case before us were rendered by a son, or by those of his family to whose services he was lawfully entitled, to his aged and infirm mother who had been deserted by her husband, and left without any human being to take care of her or supply her wants, except so far as the use of the house and garden might enable her to supply them. If there is any case in which a child, possessed of human affections, could be presumed to render services gratuitously, this is the one. In the course of the twenty-five or thirty years during which this aged lady was left destitute and alone, this son furnished to her but a single barrel of flour and a few other articles of food. If he drew her a little fire wood, he seems to have cut largely from his father's farm and for which he has never accounted. If his children made butter for her, they took half the product; if they cultivated the garden, they had the use of part of the land. Under such circumstances, if the son intended to charge the father for services, it was his duty to so inform him, or to prove such circumstances as would rebut the presumption that they were gratuitously rendered.
But it is said that such presumption is rebutted by the *Page 507 repeated declarations of the father that he intended to give to the son the farm at his death, as a compensation for his services and those of his family, and from the further fact, that in several wills made by him, the father devised the farm to the son.
Declarations of the intestate are proved, to the effect that he intended to give the farm to the son, and that he had in one or more wills, made and destroyed before his death, devised the farm to the son. But this evidence is fully answered and overcome by the evidence on the other side, of the repeated statements of the son, that he had no claim against his father, and that too when the father called on him to know whether he had a claim which he ultimately intended to bring against him. The son had very considerable wood off the father's farm and for which no account was kept or rendered. And all inference favorable to the claim for services by reason of the making of a will or wills devising the farm to the son is fully met by the destruction of those instruments, which is a very significant act to show that he did not deem the son entitled to it.
The general term decided the case correctly on the merits, and their judgment should be affirmed.
DENIO, Ch. J. concurred with MULLIN, J.
Judgment reversed. *Page 508