#### Succession of TITO.

No. 17167.

Court of Appeal of Louisiana. Orleans.

April 24, 1939.

Rehearing Denied May 8, 1939.

Waverly A. Henning and Robert G. Comer, both of New Orleans, for appellants.

Alexander E. Rainold, of New Orleans, for appellee Jos. M. Vonau, testamentary executor.

WESTERFIELD, Judge.

. Mr. and Mrs. Alfred Beattie filed an opposition to the provisional account of Joseph M. Vonau, Testamentary Executor of the Succession of Peter Thiebald Tito, claiming that they should be listed as creditors of the Succession in the sum of $972.

There was judgment dismissing the opposition and opponents have appealed.

Opponents’ claim *consists*of an alleged salary of $9 per week, said to be due Mrs. Beattie from February IS, 1937, to June 6th, 1938, erroneously calculated as 73 weeks or $684 instead of 68-weeks or $612, as housekeeper for decedent and $288 for *48*days’ nursing at $6 per day, amounting, as corrected, to the sum of $900.

Alfred Beattie is and has been a cripple for about twenty-six' years. His wife, Augustine Beattie, made a living for both of them by working in a bakery where she earned $9 per week. They lived at 615 Mandeville Street in a house owned by Peter Tito. Tito, who was more or less an invalid and in need of a housekeeper, wrote to the Beatties urging them to come and live with him at his residence, 2210 Dauphine Street, sending them the following remarkable communication:

> “Beattie I’ll pay market for 3—

> “I’ll give you 3 rooms, 2 front 1 back and kitchen in yard Tool House.

> “I’ll pay you Extra to Keep House Clean “ “ “ “ to Keep Beding “

> " “ “ “ “ Look Around in one word to keep house.

> “How much do you think will be correct per week — ans.

> “This will be Home for you in future— take cafe of garden — move some of your plants Sell them.

> “You should move as soon as possible make Haste if you don’t I’ll get-some one I have in view — ans.

> “Cook diner for 3 — I pay for Extra this is a chance — ans.

> “Take charge at once or as soon as gas in it I’ll mov over — ans.

> “You can take any small Job out side if you want besides — ans.

> “What are you earning per week at Bakery — let me know. — ans.

> “(Signed) Peter Tito.”

*175Alfred Beattie testified that he answered this note of Tito’s and informed him that his wife was earning $9 per week at the Hubig Pie Company and that he would accept the proposition made by Tito providing he gave his wife the same salary that she was receiving from the bakery. The Beatties took up their residence in Tito’s household and he paid Mrs. Beattie $9 per week from February 15, 1937, until he died, June 6, 1938, but out of the $9 given Mrs. Beattie she was obliged to pay for the food consumed by all the occupants of the household which consisted of Peter Tito, a yardboy and body servant by the name of Vincent Trapanier, and the Beatties.

The position of the executor is that this was all that Tito obligated himself to pay, whereas the opponents insist that a fair interpretation of the Tito letter would indicate that Mrs. Beattie was to receive her salary without being obliged to incur any expenses in connection with maintaining the household. In other words, she was to act as a housekeeper. It is apparently conceded that $9 per week was not more than sufficient to purchase the food and leave anything which might be considered as compensation for Mrs. Beat-tie or her husband. It certainly' seems .to us that the sum was none too much for the purpose for which it was used. The question for our decision, therefore, is whether Mrs. Beattie was to receive nothing but board and lodging for herself and her husband as compensation for her services or whether she was to be paid a salary of $9 per week in addition thereto. Turning to the letter of Tito we find the following : — ■

> “I’ll pay you Extra to Keep House Clean “ “ “ “ to Keep-Beding “

> “ “ “ “ “ Look Around in one word to keep House.

> “How much do you think will be correct per week — ans.

> * * *

> “Cook diner for 3 — I pay for Extra ■this is a chance — ans.

> ^ *1»

> “What are you earning per week at Bakery — let me know — ans.”

If Tito intended to pay extra to keep his house and bedding clean and to cook dinner for three (he omitted the negro servant) .and wanted to know what salary Mrs. Beattie was earning at the Bakery, he must have contemplated paying Mrs. Beattie more than the cost of the upkeep of herself and her husband. If he had no intention of paying a salary it did not make any difference what Mrs. Beattie was earning at the Hubig Pie Company.

Counsel for the executor calls our attention to the fact that the Beatties lived in the Tito house from February 15, 1937, to June 6, 1938, without receiving any salary and he makes the point that it is unlikely that the Beatties would have remained with Tito for this length of time without being paid — if, indeed, they were entitled to a salary. But when it is considered that Mr'. Beattie was sixty years old and a hopeless cripple and that their meagre household furnishings had been, for the most part, sold, it is not surprising that they refused to leave Tito, where, at least, they had food and shelter, rather than attempt to establish themselves elsewhere without any means for the payment of board or rent and with very little hope of an old woman getting employment. Moreover, Tito had, on several occasions, promised to pay the salary due Mrs. Beat-tie as soon as the rent collections improved, Tito’s income being made up very largely of rentals from small tenements which he owned. Our conclusion is that the opposition, so far as the claim for salary is concerned, should have been maintained.

_ In regard to the claim based upon the services of Mrs. Beattie as a nurse for forty-eight days at $6 per day, the evidence is to the effect that Tito was not bedridden until four or five days prior to his death. And that while he may have required some attention and doubtless Mrs. Beattie, as an occupant of the premises, rendered considerable service in the manner that is customary in a household where an aged and ailing individual is spending his last days, we are not satisfied that these services were of sufficient importance and frequency to sustain the claim for nursing. Much of the attention required by Mr. Tito was given him by the yardboy, Vincent Trapanier, who seems to have acted as a sort of body servant during Mr. Tito’s last days. The claim for nursing was properly disallowed.

For the reasons assigned the judgment appealed from is reversed and it is now ordered that the opposition of Mr. and Mrs. Alfred Beattie to the provisional account of Joseph M. Vonau, the testamentary executor of the Succession of Peter Thiebald Tito, be maintained in so far as the claim for salary is concerned, and that they be *176recognized as creditors of the succession in the sum of $612 together with all costs.

Reversed.