Horton's Appeal

Mr. Justice Paxson delivered the opinion of the court, The auditor found that the appellant is a relative by marriage of her guardian, the appellee, being a niece by blood of his wife, and that she lived with her said guardian as one of his family ; that she worked therein, and was boarded, clothed and schooled as one of his own children; that she was generally strong and healthy, and able to perform a reasonable amount of labor; that [64] the guardian never applied for and obtained an order of court for an allowance for the support of the ward, nor does the evidence show that the guardian made any charge on his books for the support of his ward during the time she resided in his family. All this is consistent with the allegation, abundantly sustained by the evidence, that the guardian had placed himself in loco parentis to his ward. We have the further fact found by the master, that the orphan was eligible to admission to the school for soldiers’ orphans at Harford, where she could have been schooled and maintained without expense. Her guardian was under no legal duty to place her there, but it is a circumstance to be considered when he attempts to charge her with the cost of her board and maintenance during the years that she was a member of his family, and if the evidence is to be believed, doing his chores, milking his cows and feeding his pigs. The learned auditor rejected the claim of th.e guardian for the support and maintenance of his ward. In doing so he was clearly right. While relationship, either by .consanguinity or affinity, except in the case of parent and child, does not of itself rebut the presumption which the law raises, that a promise to pay is intended when personal services are rendered, yet as was said in Smith v. Milligan, 7 Wright 107, it tends to rebut such presumption, and if accompanied by other evidence is sufficient. In Douglas’s Appeal, 1 Norris 169, the decision is directly to the point, that when a step-father takes his step-child to live with him as one of his family, he is not entitled to be repaid for expenditures made for her during her minority. Duffy v. Duffy, 8 Wright 399, is equally in point. See also Ruckman’s Appeal, 11 P. F. Smith 251. We are of opinion that the court below erred in sustaining the exceptions filed by the guardian to the report of the auditor. They should have been dismissed and the report confirmed. The decree is reversed at the costs of the appellee, and it is ordered that distribution be made as reported by the auditor.