Appeal of Barhite

Opinion, Mr. Chief Justice Paxson : The learned auditor and court below have both found that the family relation existed between Carrie Barhite and her grandfather, the testator, and that there was no express'contract by which she was to be paid for her services. Under such circumstances it would require a very strong ease, a clear mistake, to justify us in reversing their findings of fact. So far from there being a mistake in this. instance, we think the findings referred to are sustained by the evidence- It is true the testator, whose wife was deceased, and who was an old [409] man living alone, invited bis granddaughter, who was living with her father, to come and live with him, and keep his house. She came, and remained for nine years, and until his death. During ail this time, there can be no doubt, under the evidence, that she was living with him as a member of his family, and without any contract as regards compensation. It was not alleged that he ever paid her a dollar as wages; on the contrary, she lived with him just as a child would do, her clothing and other expenses lor most of the time being supplied by him. There was evidence of his declarations that she was useful to him and should be well paid for her services. These, however, were but the loose declarations which can almost always be proved in such cases, and refer to future intentions, which may mean a provision by will, or other benefit, to be conferred in some other manner. It is incredible, if there was a contract for wages, that she should have remained with him for nine years, and never have demanded nor received a dollar, especially in view of the fact that at one time she applied to her father for money. This belongs to a class of cases which we do not feel disposed to encourage, and in its own facts, furnishes a sufficient reason why we should not do so. Here we have the case of a farmer’s daughter, who at her grandfather’s request, makes her home with him and keeps his house. The two were living together, in a small frugal way, on a little place of ten acres. She takes care of his house, and sometimes does the chores out of doors. She has her home with him and he pays her expenses, such as were incident to her condition in life. At the end of nine years the grandfather dies and his granddaughter claims for her services the sum of $8,675 which was promptly paid by her father, who was the executor. No credit was given for her support, clothing or other expenses. Yet, strange to say, this marvelous result would seem to be justified, as to the value of her services, by the testimony of a number of apparently respectable witnesses. Their testimony, however, is chiefly valuable as a curious illustration of the extreme liberality in which some persons indulge with the money of other people. Notwithstanding what the witnesses say, every person of average intelligence knows that this girl could not have made and saved one fourth of that sum in nine years, in any honest employment which she would be likely to obtain. [410] The learned auditor, while of the opinion that she was not entitled to recover for the household duties performed by her, yet was of opinion that she performed other duties as to which an implied contract might arise, and for these services he allowed her a compensation of $290 per year, amounting to . $2,537.50. It appears that the testator, although living in a small, miserly way, was rich. He left an estate in moneyed securities amounting to about $90,000. He was an extremely ignorant man, and his granddaughter had some education, and was ready at figures. She calculated his interest for him, and gave him what assistance he needed about his papers. It was for these services that the auditor awarded her the sum of $2,537.50. Upon exception, the learned court below reversed the auditor, and held that the claim for these services came within the same rule as her compensation for household work, and disallowed it. In this we think the court was right. The distinction made by the auditor was a distinction without a difference. As was said by the learned court: “The blood relationship existing between them, together with the family relationship established when she came to live with him, rebut the presumption of any promise on his part to pay for her services, and no express promise was proved.” I have not considered it necessary to discuss the authorities upon this point. Our own cases are numerous, and are right in a line with the foregoing. Perhaps there is no branch of the law with which the profession is more familiar. We find no error in the ruling of the court in regard to the accountant’s commissions. He claimed six per cent, upon the personal estate, including an advancement of $5,000, for which there was nothing to do but take a receipt. He also claimed commissions on the sum of $4,337.27, in which he was indebted to the estate. The auditor and court below disallowed commissions on these two items, and reduced the commissions on the residue to five per cent. Under all the circumstances, this was liberal. The estate was large, there were no debts worth' speaking of, and no complications. The estate could have been distributed in kind between the legatees — the accountant and his two brothers — without delay or risk. Without desiring to criticise the conduct of the accountant unduly, he appears to have been actuated by a desire to make all he could [411] out of the estate in a legitimate way. A conspicuous instance of this may be found in his paying the extravagant claim of his daughter, without consultation with the other parties interested in the estate. The court below properly surcharged him with tiie amount of this payment. Nor was it error to put the costs of the audit upon the accountant. The audit was rendered necessary by his own unfounded charges. The decree is affirmed, and the appeal dismissed at the costs of the appellant.