#### Lewis M. Gillam, Administrator, *vs.*James Gillam.

Defendant was the agent of his mother from 1835 to 1851, to hire out and manage her slaves. He purchased her life estate in a tract of land, and agreed to pay her therefor an annuity of fifty dollars per annum. About 1S48, he received certain pension moneys, which were paid on account of his father’s Revolutionary services: and from 1840 until 1851, when she died, his mother lived with and was maintained by him. The bill was filed by her administrator for an account: *Sdd,*

That, ns to the annuity, for all sums due more than four years before the bill was filed, the demand was barred by the statute of limitations.

That, as to the pension money, defendant was not estopped by his agency from showing that, under the laws of Congress, it belonged, nob to bis mother, but to the estate of his fathei.

That he was entitled to compensation for the board and maintenance of his *mother;*and that he was not restricted, in his demand on that account, to the amount due by him for the hire of the negroes during the time his mother lived with him.

BEFOK.E JOHNSTON, OH., AT ABBEYILLE, JUNE, 1855.

This case came before the Court on exceptions to the following report of the Commissioner :

“ The Commissioner, to whom the questions made by the pleadings have been referred, begs leave to submit the following Report:

“ That Robert Gillam, the husband of Elizabeth Gillam, died in 1813, having previously duly made and executed his last will and testament, whereby he bequeathed and devised to his widow, the said Elizabeth, certain negroes therein named, and the moiety of a tract of land, in Newberry District, for life. After the death of Robert Gillam, Mrs. Elizabeth Gillam took possession of the said estate, and managed it till 1831, when she abandoned house-keeping, and resided with her relatives in Newberry District till 1840, when she removed to the house of the defendant, her son, and continued with him till her death, in 1851. ' By the will of Robert Gillam, the other moiety of the tract of land in Newberry District was devised to James *68Gillam, as also the part devised to Mrs. Gillam after the termination of her life-estate. About the year 1835, the defendant, James Gillam, having long since removed to Abbeville District, and his mother having abandoned house-keeping, became desirous.of selling the tract of land in Newberry District, and, in consideration of the sum of fifty dollars, to be paid annually to Mrs. Gillam during her life, procured a release from her of her interest in the moiety of the said tract.

“In 1835, James Gillam, at the request of his mother, undertook the hiring out and management of the negroes, which he continued to do till December, 1851, when she died; collected and received the money, and paid the accounts of the said Elizabeth Gillam. The said defendant also, in 1847,1848 and 1849, received various sums of pension money, to which his mother was entitled for Revolutionary services of her deceased husband, Robert Gillam, amounting altogether, after deducting expenses, to the sum of five hundred and thirteen dollars and sixty-nine cents.

“ In 1836, many years before her death, and several before she took up her abode at defendant’s house, Mrs. Elizabeth Gillam duly executed her last will and testament, whereby she made disposition of all her effects, choses in action, &e.

“After her death, in 1851, the said will was admitted to probate, but the executors therein named having refused to qualify, letters of administration, with the will annexed, were granted to the complainant, who thereupon instituted proceedings against the said James Gillam for the arrears due on the annuity of fifty dollars, as before mentioned, the hire of the negroes, and the pension money.

“ To the amount claimed by the complainant, the following grounds of defence are relied upon by the defendant: *First,*that the matters now in suit were not in existence at the date of the will, and not contemplated by it; *secondly,*that the amount due him for the board and maintenance of his mother *69would exceed the amount of money due by him to Mrs. Gillam *■*and thirdly, the statute of limitations and the lapse of time.

*“*The question arises, then, is the defendant liable to account, and to what extent ? The proof is clear, and indeed it is admitted by the defendant, that from 1835 to 1851, he either hired out Mrs. Gillam’s negroes or worked them on his own farm, paid her accounts, &c., and in every respect acted as her agent. That the choses in action now in suit were not in existence at the date of the will, is immaterial, as it has been often held, that subsequently acquired personal property will pass under a will. I apprehend, if Mrs. Gillam had died intestate, her representatives would clearly have been entitled to her choses in action of every description. As agent of Mrs. Gillam, he cannot avail himself of the protection of the statute until a demand and settlement. The cases of *Wardlaw*vs. *G-ray,*and *Paris*vs. *Oobb,*seem to me very clear on the point.

“ To what extent, then, and for what sums, is the defendant liable to account ?

“ In 1835, as above stated, the defendant, in consideration of the release of her life-estate in the tract of land in New-berry District, by Mrs. Gillam, undertook to pay her the sum of fifty dollars annually. The depositions of J. G. Sheppard and F. B. Higgins are very clear on the point, and the defend, ant, in his answer, does not deny it, but alleges that, in 1839 or 1840, as he was proceeding to charge himself with the said sum, Mrs. Gillam voluntarily released him from all further liability in relation to the same. Of this allegation there is no proof, except the answer; and I think, under the circumstances, the defendant must account for arrears. As regards this claim, however, I think the defendant occupies a different position from that in which he stands in reference to the other matters in controversy. Here he stands on the same footing as an ordinary obligor or debtor. His obligation is a purely personal one, and subjects him to a legal liability, while he no longer occupies the confidential relation of an agent to his *70principal. For this reason, I think the statute a protection, except for the last four years of Mrs. Gillam’s life. This, at the rate of fifty dollars per annum, will make two hundred dollars. By the obligation of defendant, the said sum of fifty dollars was payable annually, and upon failure of payment, became an interest bearing sum. In addition to the sum of two hundred dollars, I think the defendant must account for the interest upon each annual sum of fifty dollars, from the time it fell due.

“ In 1835, the defendant, James Gillam, at the request of his mother, hired out her negroes, and continued to do so till her death, in 1851. The amount of their hire, during the intervening period, as appears by defendant’s answer, and proved to be correct by the evidence of R. C. Gillam, is three thousand and thirteen dollars. During the same period the defendant expended, on account of Mrs. Gillam, the sum of seven hundred and five dollars and ninety-eight cents, of which the sum of five hundred and forty-five dollars and ninety-four cents was expended between the years 1835 and 1840, before Mrs. Gillam went to reside at defendant’s house. As a set-off to the hire of the negroes, the defendant makes a charge of two hundred and fifty dollars per annum for the board and maintenance of his mother during the twelve years she lived with him, amounting to the sum of three thousand dollars. Much and voluminous testimony was introduced to prove the value of those services ; and the witnesses, Dr. Holland, Miss Johnson, Miss Smith, R. 0. Gillam and Simeon Chaney, all prove the great care and trouble endured by this defendant, and the constant attention and affectionate kindness with which he endeavored to promote the comfort and soothe the declining years of his mother, when, her body enfeebled and her mind impaired by old age, she had become a charge and burden to her family. -By the same witnesses, the value of these services is rated from three to five hundred dollars per annum, a sum exceeding the charge made by defendant. The complainant *71alleges that the services rendered by defendant to bis mother were gratuitous, and never intended to be a charge. It cannot be doubted that services intended to be gratuitous, cannot after-wards be converted into a charge, but will not the *onus*of proving such to be the case rest upon the party making the allegation ? and will the law presume such services gratuitous where the recipient has, if not a competency, at least an estate which can contribute largely towards a support, especially, too, where the benefit does not accrue to the person receiving, but to third persons ? I must confess, however, the evidence which sustains the defendant’s claim for compensation is *inferential*rather than demonstrative. Independent of the answer .of defendant, there is no proof whatever on the subject, except some remarks made by Mrs. Grillam, in a conversation had with the witness R. C. Grillam. The defendant alleges that Mrs. Gil-lam frequently told him that she wanted him to keep her and take charge of her property, and that, if there was enough to compensate him, she cared for nothing more, and appeared solicitous only lest her little “income” would not be adequate to compensate him. In the conversation with R. C. Gillam, Mrs. Gillam said she had a comfortable home for life, and wanted nothing more.

“ Defendant alleges that Mrs. Gillam intended not only that the hire of the negroes, or their services during the time she lived with him, should go as a compensation for her board and maintenance, but also the hire which had accumulated from 1835 to 1840, before she came to live with him. I see nothing in the evidence or the circumstances of the case to bear the defendant out in this construction, and I think he must account for the hire of the negroes from 1835 to 1840, amounting to the sum of eleven hundred and seventy-two dollars. The amount expended by defendant for Mrs. Gillam is seven hundred and five dollars and ninety-four cents, nearly the whole of which was expended during the same period; and I think the defendant ought to be allowed the same as a credit, so far, *72on the above sum. Some testimony was introduced to show that the value of the hire of the negroes was greater than the amount defendant charged himself with; but, under the view I have taken of the case, the result is the same.

In 1847, 1848 and 1849, James Gillam received pension money, due to Mrs. Gillam, after deducting expenses, to the amount of five hundred and thirteen dollars and sixty-nine cents. The same was received by him as agent of Mrs. Gil-lam, and I think he must account for it.

“ The account, then, will stand as follows:

“James Gillam,.Dr.

“ To four years’ annuity, at fifty dollars per annum, with interest on each sum from time it fell due,

*ay to 1st June, 1855, ..... $268 80

“ To amount hire of negroes from 1835 to 1851, . 3013 01

“ To amount pension money,.513 69

$3,795 50

“Or.

“ By board of Mrs. Gillam, from 1840 to

1851 (am’t hire of negroes), . $1841 00 _

“ By amount paid for Mrs. Gillam, from '

1835 to 1851, . . . ' . 705 98 '

-— 2546 98

$1,248 52

“ The above sum of twelve hundred and forty-eight dollars and fifty two cents I think the defendant must account for to complainant.”

JohnstoN, Ch. This' case comes before the Court upon a report and exceptions subject to equities. The pleadings and evidence being in writing, dispense with the necessity of stating the case, and the points made. The report and exceptions, and *73the Commissioner’s judgment on the exceptions also, speak for themselves.

The bill is brought for an account. Mrs. Grillam, the mother of the defendant, and testatrix of the plaintiff, had a life-estate in a small tract of land, and a few negroes. The defendant was the remainder-man of the land; and, as executor of his father, had the right to the negroes on his mother’s death, to be disposed of as part of his father’s estate.

Many years ago he purchased in the interest of his mother in the land, for which he engaged to pay her an annuity of fifty dollars per year during her life. This constitutes one claim set up in the bill.

Eor many years, the defendant, as agent of his mother, hired out her slaves, and in other years, with her assent, they remained on his plantation. This is another claim.

The father of the defendant, and husband of plaintiff’s testatrix, had been a Revolutionary soldier. About the year 1847, the defendant, while agent of his mother, applied to the U. S. Government for compensation for his father’s services, under the Pension laws, and received several sums on that account. The bill lays claim to these sums, as constituent portions of the mother’s estate. This is the third and last claim in the case.

The defence is, *in limine,*that the defendant, in the care and attention he had been obliged to bestow on his mother and her affairs, for near twelve years she lived with him, in great imbecility of mind and body, arising from great old age, understood himself, and was understood by her, to be earning a right to all the income of her property, with which he might otherwise have been chargeable; that it was, at best, but an inadequate compensation, and that it should not be wrung from him to serye as the pabulum of a will executed as far back as 1836, and probably forgotten by her who made it; but which, if material were thus furnished for its operation, would deprive an obedient and dutiful son of the proper reward of his filial piety, for no other purpose than to transfer it to others, who, all the *74time, were not called to the performance of any of the trying duties he had so assiduously bestowed on his parent. To protect himself in this moral right, he pleads the statute of limitations.

This is a general outline of the defence to the whole case. Particular objections, or defences, will be found in the after pleadings.

Reserving the general equities, the Commissioner has taken evidence and reported an account, to which exceptions have been taken by both parties.

1. As to the annuity of fifty dollars, agreed to be paid as a compensation for Mrs. Gillam’s life-estate in the land, the Commissioner considers the statute of limitations applicable to it; and holds that every instalment is barred, except such as accrued within four years before Mrs. Gillam’s death. My opinion is, that the nature of this claim renders it subject to the statute. It stands entirely apart from the matter of agency; is a common personal engagement by one person to pay money to another; and is subject to all the incidents of a demand purely legal. But my impression is, that the statute is not confined to four years before the death of the creditor, but to four years before suit brought. I presume, that when the statute begins to run in the life-time of the creditor, his death does not suspend it. It is different, I suppose, as respects demands which accrue after the creditor’s death. There the statute only begins to run from the date of administration. If I am right in these views, no instalment which accrued, of this annuity, more than four years before the filing of the bill, should have been charged, and it is so adjudged.

2. The sums received under the Pension laws. On this claim the defence was, that the money being received for Revolutionary services of Robert Gillam,'constituted part of his estate, and was distributable as such, and not as part of his widow’s estate. The Commissioner charged it to the defendant as part of the estate of Mrs. Gillam. The defendant’s excep*75tion (bis 2d exception) to this part of- the report is, “ Because, in truth and equity, the will of Mrs. Elizabeth Gillam had no reference to, and' ought not to cover and dispose of pension money, which her son, James Gillam,'received from the United States long after its execution, on account of the Revolutionary services of Robert Gillam, deceased. This money is the property of the heirs of Robert Gillam, under the laws of the United States.? Upon this the Commissioner, reporting on the exceptions, remarks, “ As regards his second exception, I think the receiving of the pension money by *Mrs. Gfillam’s agent*was a sufficient appropriation of it to her own use to relieve it from the operation of the laws of Congress in relation to pensions, and I overrule it.”

I am left to infer from this (for the laws of Congress were not produced or cited), that, by the law of the Federal Legislature, pensions are given to the personal representatives of deceased officers and soldiers ; and that the reason for transferring the money, in this case, to Mrs. Gillam’s estate is, that the person who received it was, at the time, her agent. This is hardly a sufficient reason. But to allow the production of the laws of Congress, and to permit any particular act of the defendant to be set out, by which he may be estopped from denying the right of Mrs. Gillam to the money, the report may go back. If the law is as I have supposed, or if the defendant is not estopped, as indicated, by some act (incapable of being corrected as a mistake), of course the money is, in law, the estate of Robert Gillam, and distributable under the law applicable to his will, and the defendant is not chargeable here. I suppose, if Mrs. Gillam were alive, and demanding this money, there is not a child she has (and the defendant as little as any of them) who would retain it from her. But this is neither here nor there. If the money is, in law, her’s, let her have it; if Robert Gillam’s, let it go to his heirs or legatees.

On the same claim, the Commissioner allowed interest only from the filing of the bill, and I approve his judgment.

*763. Then as to the hire of the slaves. No part of this case can be fully understood without reference to the record, &c., and least of all this part.

The defendant’s hiring out of the slaves is distinguished by the Commissioner into two periods: the first extending from 1835 to 1840, while Mrs. Gillam lived in Newberry; the second from the expiration of the first to 1851, when Mrs. Gillam died. During this latter period she lived with her son, the defendant.

During the first period, the sums charged for hire amount to . . . . ... $1172 00

And the sums expended by defendant for her, and credited, to . . . . . . 705 94

Leaving for this period a balance of hire of . $466 06 The hire of second period, .... 1841 01

$2,307 07

Against this (and also all the other claims), the defendant sets off a claim for board, trouble and attention. The Commissioner has allowed him the amount of the hire ($1841.01) from 1840 to 1851, as compensation for board, services, &c., during that time. The set-off is not allowed to extend to the hire of the entire period, which is credited only with the sums •expended. This ruling is complained of in the exceptions, and I think justly.

Though there is no explicit proof of an agreement by Mrs. Gillam to allow all the hire to the defendant, in consideration of his sustaining her in the infirmities and decrepitude of old age, there is much to favor the idea that such was her understanding and intention. But waiving this, what is there in the case, or in common justice, to confine the defendant’s claim, so that it is to be satisfied only out of the hire accruing in the last period? This is a case of agency and of mutual demands (and it is only because it is a case of agency that the statute *77has not *been*applied to all the hire accruing more than four years before suit), and what is to prevent the defendant’s claim to be paid out of any part of the account ? He has certainly established his right to at least two hundred and fifty dollars per annum, and I should think to a much higher sum, nor do I construe his answer, though it mentions that sum, as confining the demand to that amount. The claim, as I understand it, is to á *quantum meruit.*With these observations, as directions, let the report be re-committed, reserving to the Court the questions upon the general merits and equities of the case, until the report comes in; at which time, with the whole account before it, a judgment can be best formed upon them. The question of costs also reserved.

The complainant appealed, and moved for a reversal or modification of the decree upon the grounds :

1, That the defendant, James Gillam, was the general agent of his mother, Elizabeth Gillam.

2, That the annuity of fifty dollars was received and held by the defendant, as the agent of his mother.

8, That, under the circumstances, neither the statute of limitations nor lapse of time could affect the claim.

4, That the pension money, amounting to five hundred and thirteen dollars and sixty-nine cents, was received by the defendant in his mother’s life-time, as her agent, was clearly chargeable against him, and should have been so declared.

5, That the charge for board by James Gillam was an afterthought, and that no charge for board was intended by him in the first instance.

6, That the defendant, by his letter, expressed his willingness to set off the board of his mother, for the time she lived *78with him, against the hire of the slaves for the same period; and also fixes, in his answer, the sum of two hundred and fifty dollars per annum as compensation.

7, That as the Commissioner had not fixed nor decided what would be a proper sum for board, that the whole matter be referred to him, free from instruction and direction, to take testimony and report what would' be a proper allowance" for board ; and likewise what would be a proper sum for the hire of the slaves of Mrs. Gillam for the same period.

Marshall, *Thompson,*for appellant.

*McG-owen,*contra.

The opinion of the Court was delivered by

JohnstoN, Oh.

In affirming this decree, it is only necessary to observe, that what is said in relation to the claim of the defendant, for the support of the testatrix, has been misunderstood. The mistake is very natural, as the language of the Chancellor, taken apart from the report and the exceptions, on the subject of which he speaks, may seem to imply that the charge might be raised by proof above two hundred and fifty dollars per annum. That was not, however, the meaning of his remarks. Plis meaning was, that more than two hundred and fifty dollars might be allowed in those years to which the Commissioner restricted the claim, provided the whole sum allowed did not exceed two hundred and fifty dollars per annum for the whole time during which the defendant supported testatrix. With this explanation,

It is ordered that the decree be affirmed, and the appeal dismissed.

DuniciN and DaíksaN, CC., concurred.

Wardlaw, Ch., absent from indisposition.

*Appeal dismissed.*