Fitch v. Peckham

| Vt. | Jan 15, 1844

The opinion of the court was delivered by

Williams, Ch. J.

It is apparent that the important question in this case is, whether the relation of debtor and creditor existed between the plaintiff and the testator. From the situation of the parties, — the plaintiff returning with her children to the house of her father, and living with him until the time of his death, — it was incumbent on' her to show that she performed the services which were the foundation of her claim, expecting at the time to be paid therefor, and that the testator so understood it, or that he had sufficient reason to believe that she expected to make him her debtor for such services. No person is to be made a debtor without a contract, either express or implied. It seems, from the admission of the plaintiff, that no contract was made, and that no charge was made by her. The fact that a child continues to live with a parent after becoming of age, or returns to live with him, as did the plaintiff in this case, and becomes one of the family, does not ordinarily constitute the relation of debtor and creditor between them, so as to warrant a charge on the part of the parent for the board of the child, or on the part of the child for such services as are usually performed in a family by a child living with its parent.

The inquiry in this case was, what were the views and expect a-, tions of the parties in relation to the services for which the plaintiff* first advanced her claim, after the death of her father? To ascer-! tain this fact, the evidence as to the return of the plaintiff with her children, and their being supported and brought up by the testator in his family and at his expense, was directly pertinent, as tending to prove that there was no employment of the plaintiff to labor for the testator, and that she could not have expected any pecuniary compensation for her services, rendered under such circumstances. The two wills were also pertinent evidence in the case for the same purpose. The fact that a will was made was proper to be given in evidence in connection with the admissions that the plaintiff was satisfied with the provisions of the will," that no contract for wages was ever made, and no accounts kept between them, and that she only expected to b.e remembered in her father’s will, to show that she was so remembered, and that she did not, in her life time, contemplate making him her debtor.

We think that the rule of law was eorrectly laid down in relation to a legacy operating in satisfaction of a debt. In the case of Wallace v. Pomfret, 11 Ves. 542, Lord Eldon admitted parol .evidence to show that a testator did not by a legacy intend a satisfaction of a debt. In this ease the evidence on this subject was admitted without objection. The charge of the court to the jury, on this evidence, appears to be unexceptionable; — that is, that if the jury found that the legacy was actually intended as a satisfaction of all claims of the plaintiff, and was so understood and accepted by her, they might return a verdict for the defendant. Whether the last clause in the charge was strictly correct or not, it is not important to inquire, as the jury have not given any damages, either nominal or actual. They did not, therefore, balance the services against the legacy, but have found that the testator was not indebted in any sum. The judgment of the county court is therefore affirmed.