Frost v. Sumner

149 Mass. 98 | Mass. | 1889

Holmes, J.

The first count of the declaration is for a legacy of one thousand dollars, and on this the plaintiff had a verdict. The second count is for services rendered the defendant’s testator, the plaintiff’s brother-in-law, by keeping house for him and nursing him. The defendant introduced evidence that before the testator’s death it was agreed between the testator and the plaintiff that he would leave her a legacy of one thousand dollars, and that she would accept the same in payment for her services. The admission of this evidence was excepted to, on the ground that it contradicted the presumption arising on the face of the will that the legacy was a gift.

The objection is beside the point. The evidence was introduced, not to affect the construction of the will, but to disprove the contract declared on by the plaintiff. Phipps v. Mahon, 141 Mass. 471. Starratt v. Mullen, 148 Mass. 570. For the defendant’s purpose, probably it did not matter whether the testator had kept his agreement or not. Baxter v. Gray, 3 Man. & Gr. 771. Osborn v. Governors of Guy’s Hospital, 2 Str. 728. Compare Miller v. Lash, 85 N. C. 51. At all events, the evidence, if believed, showed that at the time of the testator’s death the only outstanding contract to pay the plaintiff for her services was the contract to leave her the legacy, and that this was the only contract under which a part at least of the services were rendered originally.

It is unnecessary to consider whether there was any evidence of an implied contract before the express agreement was made. See Bundy v. Hyde, 50 N. H. 116. For that question would only be material if the ground of exception had been that it was impossible to substitute the promise to leave a legacy for a debt upon an executed consideration, even when, if the debt was not disputed, the amount due was unliquidated, and a part of the consideration for the promise was services rendered after it was offered. No such suggestion has been made, and we do not mean to give it any countenance. See Wellington v. Apthorp, 145 Mass. 69; Savage v. Blanchard, 148 Mass. 348.

Exceptions overruled.