131 A. 468 | Pa. | 1925
Plaintiffs, husband and wife, sued defendant as executor to recover for services rendered his decedent for board and nursing during a period of six years immediately preceding decedent's death. The jury found for plaintiffs and a motion for judgment non obstante veredicto was dismissed and judgment entered on the verdict. Defendant appealed. We find no denial that the services sued for were rendered and were worth the amount fixed by the verdict. It is contended, however, first, that a family relation existed between plaintiffs and decedent which created a presumption that the services were rendered gratuitously, and, second, if no such family relationship existed, there was a presumption that payment for the services was made periodically and that the evidence was insufficient to rebut either of these presumptions.
Eleven years before decedent's death, he being past seventy-five years of age at the time, he went to reside with his nephew, one of the plaintiffs, and continued to make his home there until his death in 1923. Eight years before his death, he suffered a stroke, which resulted in *543 partial paralysis, and from which he never fully recovered, his physical condition thereafter making it necessary for him to receive constant attention. His condition grew gradually worse, and three months before his death he became entirely helpless, requiring attention both day and night. These services were performed entirely by plaintiffs.
The mere relationship of nephew and uncle does not in itself create a presumption of gratuitous service (Gibb's Est.,
There is also evidence from which the jury could properly find an express promise to pay for the services. The physician who attended decedent for a number of years and during his last illness testified he informed decedent that he should have a nurse to look after him, that the care of the children together with the attention he required was placing too much of a burden on Mrs. Kerr and that a nurse was secured for him. On her arrival at the Kerr home, decedent refused to permit her to wait on him, saying he wanted his nephew's wife to attend to his wants and that he would pay her for her work and keeping him but that he had his money invested, and she would be paid by his executor after his death. Another witness testified to statements made by decedent to plaintiffs, on occasions when they inquired concerning their pay, that they would get it after he was gone. This testimony, together with the circumstances of the relationship between the parties, was ample to rebut an inference that the services were to be rendered gratuitously. It was likewise sufficient to rebut a presumption of payment at regular intervals. Decedent acknowledged he was not paying because his funds were invested and he did not have the ready money, and stated frequently plaintiffs would be paid by his executors after his death. These statements were inconsistent with the theory of payment. Gibb's Est., supra, 489.
The judgment is affirmed. *545