| Mo. Ct. App. | Apr 5, 1888
Claims against estates of this sort are a very dangerous class of cases and should be scrutinized closely by the courts. Not that many of them are not meritorious, but from the nature of the claim and the. .situation of the parties, estates are liable to be swallowed •up in a manner not contemplated by the law.
The ordinary presumption of an agreement or contract to pay for valuable services rendered, does not obtain where the parties occupy a family relation, and the closer this family relation is, the farther is the presumption removed. Miller’s Appeal, 100 Pa. St. 568. It is held in England and in many of the states that .there must be an express contract between such parties ;and that it must be proven directly and clearly. But in ■other states, among which is Missouri, that holding is modified to the extent of sustaining implied contracts, though the proof, as I conceive, must still be clear and satisfactory; and great care should be taken to dis-, tinguish between expressions of gratitude and intended .generosity, and contracts importing a legal liability. “Loose declarations made to others, or even to the claimant himself, will not answer. That which may be only an expression of intention is inadequate for the purpose. It must have been the purpose of the decedent to assume a legal obligation, capable of being enforced .against him. The ordinary expressions of gratitude for kindness to old age. weakness, and suffering, are not to be tortured into contract obligations.” Hartman’s Appeal, 3 Grant’s Cases [Pa.] 271. There must be a
The evidence relied upon to support the contract in this case consists almost wholly, if not entirely, of declarations made by the deceased after the termination of the service ; if such declarations evidenced a contract, the fact that they were made after the service would not render them incompetent. But the important «question is, do they tend to show a contract between the parties ? In my opinion the most that can be made out of the testimony is, that deceased intended to discharge a moral obligation he felt towards his son by making him a gift of forty acres of land or a devise of it. He recognized his son’s kindness, and intended as a mark of his appreciation of such filial duty to give him the land, whether by deed or will does not appear but from the statement of one witness, who said it was to be by will. The evidence clearly shows that deceased regarded the matter as within his own volition. There is no statement that he ever agreed to compensate claimant, or that claimant ever expected it. The presumption of law is against the idea of a contract and the evidence must be such as to overcome this and establish the contrary. If the intention was to make a gift merely, it rebuts the idea of discharging a legal liability. There is no evidence that the son was aware of his father’s intention.
But if it should be conceded that there was an expectation of getting the forty acres by will, yet in the absence of a contract, express or implied, the claimant must fail. Services rendered by a member of a family merely with a view to, or in expectation of, the generosity of the party for whom the services were rendered will not support an implied assumpsit.
Aside from the foregoing, these considerations suggest themselves from a study of the evidence in the cause. Plaintiff’s charges cover a period of seven years and yet no account appears to have been kept of them and no payment appears to have been made as payments on account. There is a credit of one hundred dollars per year for amounts received from deceased, or retained out of proceeds of sales of produce of the farm ; but the nature of this credit discloses that no account was kept of the items; it appears to be lumped or guessed off at so much per year. Besides, it is evident that deceased did not consider such credit was a payment on account, for the whole scope of plaintiff’s evidence is, that deceased, as stated by witness Brown, had never given him anything but his “victuals and clothes.” Again, the services charged for ceased some three years before the death of the father, and yet, though plaintiff was “very poor,” no payment seems to have been made or settlement had or demanded. The deceased was a farmer whose farm appears to have been mortgaged ; is it reasonable to suppose that he would permit a money demand of sixteen hundred and eighty dollars to accrue against him for the service of a servant?- All this conduct is easily reconciled with the' relation of father and son, but not of debtor and creditor. The only contractual relations which are shown to have existed between these parties is upon plaintiff’s marriage, when, as it may be inferred, he felt the press of other obligations of equal potency with filial duty.
The judgment is reversed and the cause is remanded.