| Pa. | Apr 5, 1886
delivered the opinion of the court, April 5th, 1886.
Henry M. Seitzinger, the -claimant in this case, was the grandson of Amos Moyer, the decedent, whose estate is now for distribution; his claim is for personal services rendered in the care and nursing of his grandfather and grandmother, who were old and much enfeebled in health. Seitzinger, it is admitted, was a young, unmarried man, whose daily employment was in the boiler shops of the railroad company; he resided at home with his parents, but, from the 1st April, 1880, to 31st May, 1884, he slept in the house of his grandparents, and during the night-time gave them such attention as their condition required. During the greater part of this period he had but little to do, except- to sleep in the house; at times, the service he performed was doubtless unpleasant and burdensome, but it is admitted that he discharged his duty willingly and well.
It is objected, however, that his services were not rendered under any contractual relation with his grandfather, but were performed either through natural affection or a sense of duty to these near relatives, or perhaps at the instance of those who
When one person performs labor for another, the law ordinarily implies a contract of hiring and a promise to pay the price. The near relationship of these parties, by consanguinity however, tends strongly to rebut that presumption. In the absence of any family relation, the mere consanguinity of itself is perhaps insufficient for that purpose, but there are other facts and circumstances exhibited in the evidence, which, in view of their relation by blood, afford abundant, indeed irresistible, proof of their intention.
The learned judge of the Orphans’ Court says: “ It is perhaps true that no express contract in so many words existed;” it is equally true that the circumstances under which the services were admittedly performed, as stated by the learned judge, preclude the idea of any promise implied. In his first adjudication he states these circumstances as follows: “The deceased and his wife were respectively aged, in 1880, 85 and 75 years, and both somewhat enfeebled. They required considerable care and attention. Their children, all having families of their own, could not spare them the time necessary for their comfort, but, being deeply concerned for .them and their happiness, they had consultations among themselves respecting the feasibility of employing some suitable person to take-care of their aged parents. They came eventually to the conclusion that they could themselves attend to their wants and needs during the day-time, and that Henry M. Seitzingeiy their grandson, who resided with his parents on the same lot, should remain with them during the nights. In pursuance of this understanding, the young man slept at the residence of his grandparents from January 1, 1880, to May 31, 1884, the. time at which decedent’s death occurred, and attended to them.”
If the services were in fact rendered under an arrangement made by his sons and daughters, there is not the slightest proof of any authority on their part to make any such arrangement to bind him for the price; and as the father would have a right to suppose that, in' thus providing for his wants, his children were actuated by motives of filial affection,, no.
We are of opinion that the Orphans’ Court erred in allowing this claim.
The decree is therefore reversed and the record is remitted, that distribution may be made in accordance with this opinion ; and it is ordered that the appellee pay the costs of this appeal.