In re Schmidt's Estate

93 Wis. 120 | Wis. | 1896

PiNNEV, J.

The claimant was clearly entitled to judgment for the principal and interest of the note he held against the deceased, amounting to $127.96. There was no express contract for compensation for the board and lodging and services included in the claim under consideration, and the only question is whether the facts and circumstances are such that any promise to compensate the claimant therefor nan be implied. The charges were not made until after the death of the testator, and the claim was evidently preferred because the claimant was disappointed and vexed at what he regarded as an unfair and unequal disposition which the testator had. made of his estate, as between the claimant’s wife and her brother and his children. This fact is cogent evidence to show that it was understood at the time, in view ■of the relationship existing between the parties, that the boarding, lodging, and services, for which a claim was not preferred untii after the testator’s death, were furnished gratuitously and without hope or expectation of compensation. It is true, the claimant testifies that he had an intention all the time to make claim for compensation; but, if so, it was secret and undisclosed, and had been cherished for ■over twenty years, during which the relations between the parties, as thus disclosed by the facts, had existed. Had the testator dealt more liberally by the claimant’s wife, it is reasonable to suppose that nothing would ever have been heard of this portion of the claim. Upon the evidence before us, we cannot conclude that the claimant expected to receive or enforce payment for what were evidently intended by him as acts of hospitality, kindness, and friendly assistance to his father-in-law, and were received by him as such for such a very long period and without any intimation of any intention on the part of the claimant to make any charge for them. It cannot make any difference that the testator did not become continuously a member of the claimant’s family. The law would not imply a promise on the part of a guest to pay for board and lodging, and, under the circumstances, it is but fair to assume that the testator had an implied invitation to come and stay in the claimant’s family, when and as he chose, as their guest, and that it was so regarded. The claimant doubtless assisted him gratuitously in his business affairs, expecting that his wife would reap some advantage, as she did, from the testator’s bounty. The parties were not dealing as strangers unaffected by any personal relation, or in a business sense, and no liability can be implied for the board, lodging, and services.

The case falls within the rule that where near relations,. by blood or marriage, reside together as one common family,, and one of them renders services to another, and such other furnishes him board and lodging or other necessaries or comforts, a presumption arises that neither party intended to receive or pay compensation for the services, on the one hand, or for the board and lodging or other necessaries or comforts, on the other; that they were intended as mutual acts of kindness, done or furnished gratuitously. Kessler’s Estate, 87 Wis. 664. The relationship between the parties and the circumstances of the case sufficiently rebut the presumption that would exist in other cases that compensation was intended. Mountain v. Fisher, 22 Wis. 93; Kaye v. Crawford, 22 Wis. 320; Hall v. Finch, 29 Wis. 278; Wells v. Perkins, 43 Wis. 160; Ellis v. Cary, 74 Wis. 186. The judgment' of the circuit court is therefore erroneous.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in favor of the claimant for $127.96, with costs.