Hartman's Appeal

The opinion of the court was delivered by Strong, J. The relation of debtor and creditor is commonly presumed from the performance and receipt of services. But when the relations of the parties are such as to negative the idea that the services were rendered in expectation of payment, they cannot be made the basis of a legal claim. Thus, where services have been rendered in expectation of a legacy, the law will imply no promise to pay for them. Swires v. Parsons, 5 W. & S. 358, and the cases there cited. If it were not so, a man might be made a debtor without his consent, and even without his knowledge. The evidence returned with thereport of auditors in this case and made a part of thereport appeared to establish that Bartholomew Huber, the testator, originally went to live with Hartman, the appellant, as a friend. Certainly at first it was not contemplated between them that one should charge and the other should pay fivboarding and attendance. This is plain from what took place when Huber afterwards made his will. The conversation [276] between him and Hartman and Peter Huber, the husband of the other legatee in the will, which occurred about the time it was made, not only indicates that whatever services had been rendered had been given in expectation of being remembered in the will, but it shows a perfect understanding of all the pai’ties that by the legacies the testator was making provisions for his subsequent support and attendance. • Both Peter Huber and Hartman expressed their entire satisfaction with the arrangement. That it referred to the future as well as to the past appears from its having been agreed that he might thereafter go from Hartman’s to’ Huber’s and return at his pleasure. He might make his home at either place, though he sailed the house of the appellant his house. We find nothing in the evidence to. show that there was any understanding that the expenses of his support should be equally borne by Huber and Hartman. Evidently in pursuance of this arrangement (for there is no proof of any other) the decedent remained principally with the appellant until his death. Until after his death the appellant never asserted a title to any other compensation than from what he expected from the will. During nearly five years he made no charge — he instituted no claim. He cannot now set up against a dead man’s estate what was not a debt against him living. And as, under the circumstances, the law implied no obligation on the part of Bartholomew Huber to pay, before the appellant can claim as a creditor he must prove an express contract. Admitting, what is not entirely clear, that the services rendered as these were, imposed a moral obligation to do more than was done by the will, sufficient for a consideration for an express promise, yet the evidence of such a promise must be direct, clear, and positive. 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. ' See Bash v. Bash, 9 Barr, 262. Of such an express contract we find no satisfactory evidence, nor did the auditor find any. To Fetter, one of the witnesses, Huber said on one occasion that he made a great deal of trouble to the family (Hartman’s), which he was aware of; but they must be paid for it. To Blyler, another witness, he said, “ I will never forget Jake (Hartman), and he shall be paid for it.” He was speaking of Hartman’s having taken him up and carried him into his own room when he had fallen and broken his leg. To tbe same witness he said, “ Jake must be well paid [277] for his trouble.” These declarations were not made to Hartman, nor in his.presence. To treat them as evidence of an express contract would be giving to them an effect never intended. Express contracts between parties are not made in casual conversations with others, though undoubtedly the declarations of a person stating what he has agreed to do is evidence against him. The same observations may be applied to what was proved by Joseph Huber. To him the testator said, as he testifies, two or three weeks before his death', “ Hartman must be paid for his costs and trouble if it takes my last penny.” He said it two or three times. The witness adds that Hartman was by, but he does not say that this was said to him, or that he heard it or assented to it. This was quite insufficient evidence of an express assumption of a liability to pay that for the payment of which he had already made provision. Upon a review of the whole case we are unable to perceive that the Orphans’ Court erred in rejecting the claim of the appellant as a creditor, and in ordering distribution as they did. We discover no well-grounded objection to John S. Ruhe’s deposition. The decree of the Orphans’ Court is affirmed. See Lantz v. Frey, 14 P. S. R. 201, id. 19, id. 366 ; Sanders v. Waggonseller, 19 P. S. R. 248 ; Gifford v. Half man. 3 Phila, R. 127.