In Re Estate of Hanson

CHIPMAN, C. Appeal from an order approving and settling the administrator’s account. The only part of the account drawn in question is the following item: “Mrs. P. H. McClelland, pies, cakes, soups, etc., $208.00”; which the court allowed as a proper charge. Letters were issued to the public administrator, and the sole heir at law of the deceased filed written objections to the above item. There is no brief for the respondent. The only witness sworn at the hearing in explanation of the charge was the claimant, Mrs. McClelland. She testified with entire frankness that she never had any conversation with deceased about paying for the articles and labor mentioned in the account, and that what she did was “out of kindness for Mr. Peter Hanson.” She kept no account of the materials or labor at the time, and she stated that she was advised after the death of Mr. Hanson to put in a claim. She testified that she “never intended to charge Peter Hanson anything.” The single question is presented, namely: May one who renders a kindly and gratuitous service to another, with no inten *39 tion at the time to ask or to receive therefor any pecuniary compensation, afterwards make such act the subject of a claim? It has been often held, where services were originally rendered gratuitously, they cannot afterwards be converted into a charge. The question is fully discussed in Lampleigh v. Brathwait, found in 1 Smith’s Lead. Cas. 268. It also arose, and was similarly decided, in Moulin v. Columbet, 22 Cal. 509. The books abound in cases holding that under circumstances such as are disclosed here, there is no liability incurred. The court erred in allowing this item. The order, in so far as it approves and allows the above item, should be modified, with directions to strike it from the account, and otherwise the account should stand approved and allowed. Haynes, C., and Gray, C., concurred. For the. reasons stated in the foregoing opinion the order is modified by striking from the account the item of $208 in favor of Mrs. P. H. McClelland, and as thus modified is affirmed. Harrison, J., Garoutte, J., Van Dyke, J.