#### Wilsey *v.*Franklin *et al.*

*(Supreme Court, General Term, Second Department.*

July 18, 1890.)

Parent and Child—Compensation for Services.

Upon her marriage plaintiff ceased to live with her parents, and became estranged from her mother. After several years the mother, who was then 80 years old, alone and helpless, sent for plaintiff to come and take care of her, and plaintiff did so for 50 weeks, and then left her. *Held,*that a promise to pay for the services would be inferred.

Appeal from judgment entered on the report of a referee.

A claim by Anne C. Wilsey against the estate of her mother, Mary Mixon, for services rendered deceased in her life-time. The matter was referred, and the referee decided that plaintiff was entitled to judgment for $705.39. The report having been confirmed, the executors appeal.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

*Henderson Benedict,*for appellants. *H. G. M. Ingraham,*for respondent.

Barnard, P. J.

The claimant is a daughter of deceased, and her claim is for personal services rendered to her mother. The question is whether the parties lived together, and the services were rendered by one member of the family to another, Or whether the services were to be paid for. Deceased was a widow, over 80 years of age, and quite helpless. The claimant had left her father’s family upon her marriage in 1872. Her husband died in 1879, and after his death she lived in different places, and in March, 1881, she was living in Boston. Upon the death of the husband of deceased she was left alone, and she requested her son, Stephen Mixon, to request her daughter, the claimant, to come on from Boston and take care of her. Upon this request she came on from Boston, and took care of her mother for 50 weeks, when she left the family of deceased, and never afterwards lived with her mother. The referee, under the evidence, was justified in finding that the services were to be paid for. The mother was helpless, and, from her age, would probably continue to be so. Her husband was dead, and she was left alone. She was exacting, and hard to please. “It was a thankless task to serve her,” says one of her children. She had quarreled with the claimant upon her marriage, and this estrangement had continued until after her husband’s death. Under this state of facts she directs her son to write to the plaintiff, and convey to her the request of her mother that she would come on and aid in the housekeeping. The case is not one where a child continues with her mother after becoming of age. The claimant had for years ceased to be a member of the family, and she only went back to live upon her mother’s solicitation, and then to do the work of nurse, housekeeper, and servant. The plaintiff went upon the understanding of the mother “ that she could come there with her, and stay for a while.” The employment was fully proven, and the usual inference of a promise to pay should apply to it. Neither party could have expected such services as were rendered by the claimant to her mother would be gratuitously rendered. Assuming a right of recovery, the amount of the claim is not complained of. The judgment should therefore be affirmed, with costs.