Henderson v. . McLain

Glare, O. J. The rulings of the Judge below upon the exceptions to findings of fact are conclusive, there being evidence upon such findings. Dunavant v. Railroad, 122 N. C., 1001, and cases there cited. The refusal of the Superior Court to set aside the report of a referee on the ground of newly discovered evidence is not reviewable. Vest v. Cooper, 68 N. C., 131; Faison v. Williams, 121 N. C., 153. The exceptions to the overruling by the Judge of the exceptions of law present two main questions: First. The competency of the evidence of the daughter of the plaintiff and granddaughter of the defendant’s intestate, under Eevisal, sec. 1631 (The Oode, sec. 590). She is not interested, in a legal sense, in the event of the verdict in behalf of her father, and was competent as a witness for him. She was testifying *334 against (not in behalf of) her own interest, which, as heir at law and distributee of the estate of her grandmother, the defendant’s intestate, was that it should not be diminished. Bunn v. Todd, 107 N. C., 266, where this section is analyzed. As Avas said in Jones v. Emory, 115 N. C., 158, “Unless the witness bear such a relation to the controversy that the verdict and judgment in the case may be used against him as a party in another action, he is not disqualified to testify.” The interest in the result of an action to disqualify a witness must be legal and not merely sentimental. Sutton v. Walters, 118 N. C., 495. The same ju’inciple applies to the exception to the testimony of R. II. Neely, also a Avitness for plaintiff, who Avas guardian of plaintiff’s other children, who are distribu-tees and heirs at law of defendant’s intestate. The other point presented by several exceptions is as to the law applicable to the state of facts found by the referee and confirmed by the court. As it is found that there was no contract for compensation for board and lodging, but that Mrs. Wilson entered the family, became one of them, supervising the children in the place of her deceased daughter, and acting “as a grandmother would in a house where there were children,” the laAv raises no implied contract that she should pay board. Indeed, it is impliedly negatived, as the relation existed for over twenty years, during all Avhich time there Avas no agreement nor any payment. The $25 credited in 1903 seems to have been merely for some produce turned over by Mrs. Wilson’s tenant to the plaintiff, for which he is accountable, but there is no eAÚdence that it was paid in consideration of board. Most of the claim for board during the time Mrs. Wilson was acting in supervision of the children was conceded by plaintiff to be barred by the statute of limitations, which is pleaded, and the claim was disallowed by the referee, but he has erroneously allowed $25 for board from 1 April, 1903, to 15 June, 1903, which is not barred by the statute. This must be struck out of the account. *335 As to tbe board, lodging and attention during the last eighteen months of her life, during which time Mrs. Wilson was practically helpless and in the condition and requiring the attention found by the referee, there is nothing in the relation of the parties from which it can be justly inferred that such services and„attention were to be rendered gratuitously where the party had an estate out of which the plaintiff could reasonably have expected compensation. As long as she was residing in the family as one of them, rendering such services as a grandmother would naturally render to the children of her deceased daughter, the implication, in the absence of contract, is that she was, pro hac vice, a member of the family, and that as her company and counsel were not to be charged for, neither was she chargeable with board. . But when she becomes helpless, unable to render any service, and altogether a charge, it is the policy of the law that she shall be provided for and properly taken care of, and for this reason the necessary cost thereof is properly a charge against her estate, if she have one. There is no presumption that such care was gratuitous, but there is an implied contract to pay for it. The burden of her last sickness should not fall upon her son-in-law, at whose house she happened to be, to the total exoneration of the other members of her family, who, as her heirs at law and next of kin, will share in her estate. This is a claim for expense incurred for benefit of the decedent, not for labor and services rendered by her, and hence the authorities cited, most of which are reviewed in Winkler v. Killiam, 141 N. C., 575, are not in point. The $25 charged for board from 1 April to 15 June, 1903, will be struck out. The judgment will be thus Modified and Affirmed.