96 Vt. 95 | Vt. | 1922
This is an appeal from the allowance of commissioners on the estate of Eugene Poro. The claim in question was for personal services rendered to the intestate and in the care of intestate’s mother, Christie Poro, and of his brother, Uber Poro. The cause was tried in the court below on a complaint in the common counts, to which the defendant pleaded the statute of limitations and the general issue. During the trial the plaintiff was permitted, against defendant’s objection, to file what was termed a replication counting on an agreement by the intestate, made within the period of the statute of limitations, to pay for the services in caring for his mother and brother by way of a will devising all of his property to the plaintiff. The intestate was killed in an accident on April 23, 1918, and no will was found. The plaintiff and the appellant are sisters of the intestate and Uber Poro. They and two other sisters married and had homes of their own. The brothers were unmarried and remained at the homestead where all the children were bom, for many years making their home with their' mother, who was a widow. Uber was older than the intestate. In 1894 the mother conveyed the homestead to him in consideration of his furnishing her proper support and care during her lifetime. The intestate and his mother and brother thereafter continued to live together as before. The plaintiff’s home, where she kept house for her husband and family, was but a short distance from that of her mother and brothers. The mother was an invalid for the last nine years of her life and there came a time when she re
There was no evidence as to the arrangement under which the Poro home was maintained. It could fairly be inferred, however, from what appeared respecting their relations, that the sons shared in the expenses of maintaining the family and the mother conducted the household until prevented by her infirmity, after which the sons did such of the housework and gave their mother such care as they were able to do. They were people of limited means, and the sons were laboring men, whose work when employed required them to be away from home during the daytime.
So far, the facts were not in dispute or the evidence was such that the questions were clearly for the jury. The principal controversy was and is whether there was any evidence of an agreement by the intestate to pay for any of the services. The question was raised by a motion for a directed verdict and by
Respecting all of the services for which the plaintiff seeks to recover, it is claimed that on the evidence the services were' gratuitous and not rendered with any expectation as to payment on the part of either party. The defendant assumes that there was no evidence of an express contract, and invokes the rule that where services are rendered to a deceased person by members of his own family, they are presumed to have been rendered for love and affection, and that a contract to pay therefor will not be implied. We have no case that goes to this extent.
When the proper test is applied to these declarations, it will be seen that they come short of any evidence of a contract entered into by the intestate at the time he took the deed from Uber to assume the latter’s liability for plaintiff’s services. The statements attributed to Uber were, at most, only evidence of an original obligation on his part; while those of the intestate go no further than to show appreciation of the services rendered while the mother was living, if it can be said that he had those services in mind, and an intention to reward the plaintiff therefor by a will, which, so far as appears, was defeated by his untimely death. The promise, made to Uber long after the conveyance, to “make out” the property received from him “to pay Mrs. Peters with for being so kind, ’ ’ would have no tendency to prove such an agreement at the time the deed was executed. And in this view of the case it could not be made the basis of a recovery for services previously rendered. So far as such services are concerned, the promise would be upon a past voluntary consideration.
Judgment reversed and cause remanded.