#### Hall vs. Finch, Admr.

*Contract for services rendered by new of kin*— Evidence.

1. The relation of parent and child, step-parent and step-child, brother and sister, or the like, existing between persons living together in the same household creates a strong presumption that no payment or compensation was intended to be made for services rendered by one to the other beyond that received at the time they were rendered.

3. The person claiming pay for services in such a case must overcome this presumption by clear, direct and positive proof that the relation between the parties was not merely the ordinary one of parent and child, or brother and sister, but was that of debtor and creditor, or servant and master; and must show some arrangement or contract to that effect.

3. In the present case, which is a claim against the estate of plaintiff’s brother for the value of her services during several- years while she resided in his house, acting and being treated as the mistress thereof, this court finds no facts proven sufficient to sustain the verdict in her favor, and therefore reverses the judgment of the circuit court, and affirms the report of commissioners in the county court disallowing the claim.

APPEAL from the Circuit Court for *Jefferson*County.

The respondent in September, 1868, presented a claim to the commissioners on the estate of her deceased brother for allow anee as follows, viz.:

*279“ The Estate, etc., Db.

*“*To services as housekeeper for said F., from April, 1846, to October, 1855; and from September, 1857, to April, 1865— 17 at $100 $1,700 00

“ To money had and received to her use by said F., being percentage on collection on taxes in the town of Kosh-for the 1856. 180 00

“ To money borrowed ($3) in February, 1868, with interest at 10 cent, compounded annually, as per agreement.... 8 15

“ To interest on account of first two items less amount of credits as below, from April, 1865.. 438 66

$3,336 81

“ Ob.

“ By clothing and other articles furnished claimant while employed as above, 17 years, averaging 00

“By cash, year 1857. 5 00 $360 00

“ Balance $3,066 81”

The administrator disputed such, account, on the grounds that every item of it was harred by the statute of limitations; that during about nine years of the time the claimant was a married woman, and not herself entitled to the pay for her services, if any was due; and that, during the time she lived with the deceased, he boarded her and her daughter, and furnished them with a home, fed and took care of her stock, and let her have many necessaries of life.

The commissioners rejected the claim, and the respondent appealed to the circuit court for Jefferson county, and there obtained judgment in her favor for $800, from which the administrator appealed, a motion for a new trial having been denied. The facts proved are very fully stated in the opinion of the court

*L. B. Caswell,*for appellant,

argued that when services are rendered by near of kin, under circumstances like those in this case, an express agreement to compensate must be shown, citing 8 Corns., 312; 2 Denio, 149; 5 Watts & Serg., 357; id., 514; 16 Yt, 150; 4 Carr. & Payne, 93; *Defrance v. Austin,*9 Barb., 309; *Buffey v. Buffey,*44 Pa. St., *399; Hartman's Appeal,*3 *280Grant Pa., 271; *Updilcev. Titus,*2 Beasley, N. J., 151; *Davison v. Davison,*id., 246; *Bowen v. Bowen,*2 Bradf., N. Y., 386; *Loretv. Price,*Wrigbt, 89; *Griffin v. Potter,*14 Wend., 209; *Livingstone v. Ackerton,*5 Conn., 530; *Utica Ins. Go., v. Bbodgood,*4'Wend., 652; *Fisher v. Fisher,*5 Wis., 472; *Kayev. Crawfrrd,*22 id., 320; *Putnam Adm’r v. 'Town, Fx’r,*34 Yt., 429 ; that the verdict was clearly against tbe weight of evidence, and should be set aside, citing *Whalon v. Blackburn,*14 Wis., 432; *Bay v. Bulbck,*46 Ill., 64; that proof of an intention to compensate by will, should not have been admitted, citing *Hunter v. Hunter,*3 Strobh., 321; that the court erred in instructing the jury that the plaintiff could recover if her services were rendered pursuant to the request of the deceased; that the simple question was, were the services rendered in expectation of being paid therefor over and above what the claimant may have received, because an express agreement was necessary, and the burden of proving it was upon the claimant; and that the verdict was excessive, the court having instructed the jury that they could not in any event allow the plaintiff for her services for more than one year, and it should therefore be set aside, citing *Jewell v. Gage,*42 Maine, 247; *Packard v. Bates, 88*Ill., 40; *Rockwell v. Daniels,*4 Wis., 432 ; 6 id., 580; *Smith v. Phelps,*7 id. 211; *Roberts v. Muir*7 Ind., 544; *Finch v. Brown,*13 Wend., 601; 4 Abb. Dig., 143, and cases cited; *McIntyre v. Clark,*7 Wend., 330; 3 id., 356; *Hayward v. Ormsby,*7 Wis., Ill; *Whalon v. Blaclcburn,*14 id., 432.

*Weymouth & Porter and G. W. Burchard,*for respondent

[No brief on file.]

DixON, C. J.,

We must say in this case, as we said in another involving much the same question *[Kaye v. Crawford,*22 Wis., 322), that the verdict should have been for the defendant. The testimony fails entirely to show that the services for which the claimant seeks to charge the estate were rendered in pursuance of any agreement or understanding that they were *281to be paid for by tbe intestate in bis lifetime, or out of bis property after bis decease. Tbe facts present but tbe common case where one near of kin bas given to another, who was dependent and destitute, tbe privileges of a borne, and provided tbe necessaries and ordinary comforts of life, in sickness as well as in health, according to bis situation and circumstances, upon tbe presumed consideration of tbe services to be rendered by such other, as well as in consideration of tbe ties of relationship and good will existing between tbe parties. Tbe deceased and claimant were brother and sister. Tbe deceased was never married, but died a bachelor, in tbe month of February, 1868, at tbe age of fifty-five. From tbe year 1840, and for some time prior thereto, to tbe time of bis death, be was a farmer, residing and keeping bouse upon bis farm of 160 acres of land in Jefferson counfy.

In tbe latter part of tbe year 1840, bis father and mother, brothers and sisters, including tbe claimant, came to reside with him in bis bouse upon tbe farm, and so continued to reside until tbe death of bis mother in 1845. His bouse was tbe home of bis father’s family. For about three weeks before her mother’s death, claimant was engaged in tbe service of a neighbor, one Heyden, for ten or twelve shillings per week, and at tbe end of that time and during tbe sickness of her mother, upon going with Mr. Heyden to tbe bouse of deceased on a visit, deceased informed her and Mr. Heyden that be bad great need of her assistance and could not let her go back. She remained with deceased, and from that date commences her account or claim for services. She continued to reside there, acting as bouse keeper for him and such other persons as composed his family, from that time until tbe fall of 1854. In September, 1851, she married one Davis, who, it seems, was a poor man and bad worked for deceased upon bis farm.

Davis continued so to work, or to carry on tbe farm upon shares, after bis marriage, and until tbe fall of 1854, when, bis health giving way, be and bis wife moved from tbe bouse. of *282deceased, and sbe did not return there until some time in tbe year 1857. Sbe bad two children, tbe offspring of her marriage with Davis; one, a daughter, still' living, born in 1852. Tbe other died in infancy. Davis died in tbe autumn of 1856, and in 1857 claimant, taking her daughter with her, went back to reside with and keep bouse for her brother, as sbe bad done before her marriage and during tbe time that sbe and Davis lived in bis bouse. Davis, it would seem, bad no home. He died at bis father’s bouse, leaving claimant in indigent circumstances. Immediately after bis death, claimant went to reside with a married sister living in the same neighborhood, and remained. there until her return to tbe bouse of deceased tbe following year. At that time, and indeed before tbe death of her husband, it appears that deceased was anxious to have her return, and often requested her to do so. He said be required her care and assistance in tbe management of bis household affairs, or, as expressed by several of the witnesses, represented that “ everything was going to rack and ruin” without her. After her return sbe continued to live with him until tbe fall of 1867, a few months prior to bis death.

In August, 1862, sbe was again married to one Hall, her present husband, who, it appears, was also a laborer upon her brother’s farm. Soon after bis marriage, Hall entered tbe military service, and was absent in tbe army for some years, but precisely when be returned is not shown. After bis return, it would seem, be continued to labor upon tbe farm as before, until tbe fall of 1867, when, with bis wife and her daughter, be removedlo a distant part of tbe state. Such is a substantial history of tbe case and statement of tbe testimony, except that part of it touching tbe value of claimant’s services, tbe manner in which they were performed, and her position in and relations to her brother’s family during tbe respective periods of her residence in it Respecting her services, tbe proof is that they were quite, valuable; that sbe was an excellent housekeeper, skillful with tbe needle, faithful, industrious and frugal, and *283managed the domestic affairs of her brother and discharged her duties to his entire satisfaction.

But the proof also is,- that during all the- same time- her brother cared for and provided her with suitable clothing and other necessaries; that he looked after and supplied her wants, and supported her in all respects as he would have done a wife or daughter or other inmate or member of his family; that she had all the rights and enjoyed all the privileges in his house that a wife or a daughter of like age would have had or enjoyed ; that she was mistress of the household, came and went, and visited and received visitors, as she pleased; that her brother’s horse and buggy were always- at her service; and she used them to ride or drive as she wanted; that she drove to town, did the marketing, sold butter and eggs and other like products as housewives are accustomed to'; and that'during her widowhood, and after her second marriage, her daughter; who lived with her, was eared and provided for and- maintained and educated by her brother as his own daughter would have been.

It is likewise in proof that,- during a considerable portion of the time, claimant was not in good health, but- feeble and infirm, and subject to occasional attacks of sickness-; and that at such times medical and other necessary care and attendance were provided by her brother and at his expense; It is furthermore in evidence that, for much the greater part of the time, and especially during the summer seasons when the family was large, a servant girl, and sometimes two, were employed to do the house work, and thus to relieve claimant from labor and responsibility except as to the general Oversight and direction of affairs in the house. Still other testimony shows that, duri ing the last ten years of her residence with her brother, shé owned some live-stock, which was raised and kept by him on his farm as he kept his Own, and that when she moved away with her present husband, in the fall of 1867; she took with her sixteen or seventeen sheep and two eows.- And When shé left on that occasion, it is in testimony by a witness who *284■was assisting ber and ter bnsband, that she expressed her sorrow, and said “ she had made it her home for twenty-seven years ; it had been a home for all of them; she thought they would be back in two or three years,” etc.

And, finally, it is in evidence, and shown beyond any reasonable doubt, that, during all the period of time while these relations existed, there was never anything like an account or reckoning between the parties, any charge on the part of claimant for her services, or any claim or demand by deceased for board, clothing, or any necessaries or supplies which he had furnished. No one of the witnesses — some of them brothers and sisters of claimant, and all of them very intimate and familiar with the family — not even of those most friendly to claimant and apparently anxious to sustain her cause, pretends to testify to any conversation, admission or statement of any kind, direct or indirect, in which it was said or intimated by deceased or by claimant, that she was at work for wages, or that he or she ever expected or supposed that any payment was to be made, or other compensation received, than that given and received from day to day during the time of her residence with him.

The only facts in the case which can be construed into a request to serve, or made anything like the basis of a contract or promise to pay for services, are the statement made by deceased in 1845, when claimant came back from Heyden’s, and again his solicitation for her return in 1857, after the death of her first husband. It is impossible that the statement, or command, if one pleases, in 1845, should answer the purpose contended. His house was then her home, and had been for several years. Her father and mother resided there, and, as she said more than twenty years afterwards, it was “ a home for all of them.” She had gone out for temporary service merely, and what deceased then said amounted to no more than representing in plain language, as he would naturally do, what he considered was her duty under the circumstances.

It appears she took the same just view of the matter which *285be did, and remained at borne where ber assistance was required, as it would have been strange if sbe bad not. And in 1857, also, when be asked ber to return, that was but an invitation to ber to make bis bouse ber borne, and was necessarily understood and intended to be a renewal of former relations, a tacit agreement to live together on the same terms and in the same manner as before. He was in want of a housekeeper, and sbe in want of a borne. Her health, never firm, was now more impaired than formerly, and sbe was in a great measure physically incapable of earning a livelihood for herself and her child. Her brother, it appears, well understood this, and only desired ber to oversee bis household affairs. If at that time, or if on the first occasion, in 1845, claimant bad been offered ber choice to live with ber brother as sbe did do, orto go and earn ber living among strangers as a mere servant or employee at wages, can there be a doubt what ber choice would have been ?

As observed by the court of appeals in a like case, *Williams v. Hutchinson,*3 N. Y., 319: “ There are considerations growing out of the relation which the parties sustain to each other, which cannot be computed in money.” So here, there were considerations growing out of the relation which existed between claimant and her brother, his' tenderness and regard for her and her child, and the affection which he uniformly manifested, which money could not have bought, and which never could have been realized among strangers. There can be no doubt that claimant would not have exchanged these considerations, and the comforts of a good home of which she was substantial ruler and mistress, for all the money which any witness is able to compute or testify she might have earned as a menial or servant elsewhere, or in the houses of those feeling no especial interest in or regard for her happiness and welfare.

It becomes our duty, therefore, as it has not unfrequently been the duty of courts heretofore, upon careful study of the case, to say that there is no evidence of any contract or promise on the part of deceased, upon which the charge, which claimant *286.now finds it convenient to make against bis estate, is or can be sustained. Suck charges have been often made, and the books,abound in .precedents of tbeir defeat In our judgment, there is not a single fact in .the case that does not tend to rebut the implication of an agreement, or promise, or engagement between the parties, It is no mere matter of surmise or conjecture, but all the facts and circumstances.show clearly enough that nothing of .the kind ever entered into their minds.

Rut, in cases of this nature, the rule of law is not that the administrator or representative must establish a negative in order to defeat the claim. The relation .existing between the parties, as parent and child, step parent and step.child, brother and sister, and the like, is itself strong negative-.proof, and raises a presumption that no payment or compensation was to be made beyond that received by claimant at the time, which can only be overcome by clear and unequivocal proof to the contrary. The evidence.must be.clear, direct and positive that ,the relation .between the parties was not the ordinary one of parent and child, or of brother .and sister, but that of debtor and creditor, or of master and servant. To establish this new relation, it is obvious that some arrangement or contract to that ■effect must be shown. No man is to be made debtor without .his knowledge, or assent, or under circumstances where he has no reason to expect that such.is his position or liability.

In the language of this , court in the case first above cited, the party seeking to recover compensation for services rendered under such circumstances must show an *“*agreement or understanding that they were to -be paid for.” And such has been the view uniformly taken by this court whenever the subject has been alluded to. *Fisher v. Fisher,*5 Wis., 472 ; *Mountain v. Fisher,*22 Wis., 93. In regard to such agreement or understanding, it. is manifest from the nature of the case that it can in general be arrived at only by express stipulation between the parties; and, accordingly, we-find the best considered authorities holding that an express contract must be shown.

*287Thus, in *Hartman's Appeal,*8 Grant’s Oases, Judge STRONG, delivering the opinion of the court, says: “ And as, under the circumstances, the law implied no obligation on the part of deceased to pay, before the appellant can claim as creditor he must prove an *express*contract. Admitting what is not entirely clear, that the services, rendered as these were, imposed a moral obligation to do more than was done by the will, sufficient for a consideration for an express promise, yet the evidence of such a promise must be *direct, clear*and *positive.*Loose declarations made to others, or even to the claimant himself, will not answer. That which is only an expression of intention is inadequate for the purpose. *It must have leen the purpose of the deceased to assume a legal obligation, capable of being enforced against him.*The ordinary expressions of gratitude for kindness to old age, weakness and suffering, are not to be tortured into contract obligations.”

And, in relation to the kind of evidence required to establish the contract, it was said in *Duffey v. Duffey, 44*Pa. St., 402, that it could not be, “unless upon clear and unequivocal proof, leaving no doubt.” And in *Bash v. Bash,*9 Pa. St., 260, it was held to entitle a son to recover for the breach of a contract by the father, that if the son would continue to live with and work for him, he would leave him his farm, that the evidence of the contract must be *direct and positive]*and that it was error to instruct the jury that, instead of such evidence, it was sufficient if it was clear and satisfactory. In that case Chief Justice GibsoN said: “ It is settled by the decisions quoted, that a contract for testamentary compensation of work done for a father by a son after his majority can be proved only by direct and positive evidehce of it; yet, for “direct and positive,” the judge substituted, in his charge, “ clear and satisfactory,” and thus put such a contract, as to proof of it, on the footing of a contract between strangers unaffected by any personal relation. The course of this court has been to hold a tight rein over it by making the quality, if not the sense of the proof, a *288subject of inspection and governance by tbe court, and by bold-ing juries strictly to tbe rule prescribed, instead of suffering tbem to be led away by considerations of hardship, or paternal injustice. Every man must be allowed to mate bis own contract, as well as bis own will; and, to prevent jurors from making it for him according to their peculiar notions of fitness and propriety, we have held that the evidence of a contract to compensate tbe services of a child must be positive and direct But evidence, clear and satisfactory in tbe estimation of a jury, may be neither. It may be no more than presumptive and inferential; and if that were sufficient, it would be easy to see bow every case of this sort would go. To an unpracticed eye, loose and inconsiderate expressions, such as mate up tbe mass of evidence in this case, and presumptions or probabilities resting on circumstances, may seem perfectly clear and satisfactory; but they constitute not tbe proofs by which such a contract is to be established in conformity to tbe judgment of this court.”

And to tbe same effect is *Candor's Appeal,*5 Watts & Serg., 513, where, speaking of *“*tbe great hazard of allowing such a claim on such flimsy pretexts,” tbe court say : “ Tbe temptation to fraud, particularly where tbe family are in straits and difficulties, is too great. A court of justice does tbe most signal service to tbe community when they remove, as far as human law can, all temptation to fraud, and its kindred vice, perjury. We must carefully avoid throwing temptation in tbe path of integrity and truth.” And, in *Lynn v. Lynn,*29 Pa. St., 369, it was also ruled, that without an express contract there can be no recovery in such case. In that case tbe court observe: “Causes of this character are among tbe most odious that courts have to deal with. Yery commonly they are brought in order to obtain from a parent’s estate, by way of debt, a larger share than other heirs, as a sort of discriminaton for supposed larger merits. But the law cannot make up for such differences, and it does not aim at impossibilities. In the administration of family affairs, and in the expenditure of time, *289care and money on tbe several children, there are necessarily very great differences, and the results are very different; but the law cannot equalize them. It would produce the most deplorable strife and litigation in families in attempting it; and then it would certainly fail. Better that the largest estate should be entirely destroyed, than that the attempt should be made in a-single case.” In addition to the foregoing, see also *Sevires v. Parsons,*5 Watts & Serg., 358; *Defiance v. Austin,*9 Pa. St., 309; *Lantz v. Frey and*Wife, 14 id., 201; *Cummings v. Cummings,*8 Watts, 366; *Pelly v. Rawlins,*Peake’s Add. Cases, 226 ; *Eitel v. Walter,*2 Bradford, 287 ; *Fitch v. Peckham,*16 Vt., 150; and cases cited to this point on the brief of counsel for appellant.

The rule of the above cases may seem somewhat stringent, but we are satisfied it is founded on considerations of wisdom and sound policy, which abundantly justify and sustain it. The peace and harmony of many otherwise happy families would be entirely broken up and destroyed, by the strife and controversies which would ensue through the fraud of some and the avarice and litigiousness of others, if any other rule were adopted. In the present case, it would, have been far better had the claimant been satisfied to take her share of her deceased brother’s estate,- equally with her other brothers and sister, who together constitute the heirs, than that this unfounded claim should have been presented, to be followed by three or four year’s expensive and most vexatious litigation, which in the end comes to nothing but a large bill of costs for claimant to pay, and which it is evident she can ill afford to lose.

The judgment of the circuit court must therefore be reversed, and the decision and report of the commissioners in the county court, disallowing the claim, and from which appeal was taken by claimant to the circuit court, must be affirmed; and the decision and judgment of this court must be certified to the county court in pursuance of the statute in such case made and provided. E. S., ch. 101, sec. 26.

*290ORDER.

This cause came ou to be beard on appeal from tbe judgment of tbe circuit court for tbe county of Jefferson, and was argued by counsel. On consideration whereof, it is now bere ordered and adjudged by tbis court, that tbe judgment of said circuit court in tbis cause be, and tbe same is hereby, reversed, with costs, and that tbe decision and report of tbe commissioners in tbe county court of Jefferson county disallowing tbe claim of respondent be, and tbe same are hereby, in all respects, affirmed. And it is hereby further ordered that a certified copy of tbis order be transmitted to said county court, and also that another like copy be transmitted to said circuit court, to be entered of record therein.