Appeal of Barhite

1. Where a young woman lived with her grandfather as a member of his family for a number of years prior to his death, she is not entitled to be paid for services rendered by her, without proof of an express contract therefor. 2. Whatever the nature of her services, whether the performance of household duties or assistance rendered in the transaction of his business, indefinite declarations of the grandfather that he would' pay her, etc., are insufficient to establish a contract for such payment. 8. An executor is not entitled to the allowance of a commission upon an advancement made by the testator in his lifetime, or upon his own indebtedness to the estate, brought into the amount with which he has charged himself. 4. Under the circumstances of this ease, the accountant’s commission upon the portion of the estate upon which he was entitled to commissions, was properly fixed at five per cent, and, the audit having been rendered necessary by his unfounded charges, it was not error to impose the costs thereof upon the accountant.

FROM THE DECREE OF THE ORPHANS’ COURT OF ERIE COUNTY. No. 393 January Term 1889, Sup. Ct.; court below, No. 2 February Term 1887, O. C. On February 7, 1887, Alexander Barhite, executor of the will of John Barhite, deceased, filed a partial account showing a balance in his hands of $15,812.57. The accountant claimed credit, inter alia, for $3,675 paid to Carrie Barhite for services-rendered the decedent during his lifetime, and for $2,100, as commissions at the rate of six per cent upon the total amount with which he had charged himself, to wit, $35,080.65. Of the items which made up this last mentioned amount, there was one of $5,000, charged as an advancement to Wesley Barhite, a son of the testator and a legatee, and another of $4,337.27, which represented an indebtedness of the accountant himself to the testator. Exceptions having been filed by Wesley and Peter Barhite, legatees, inter alia, to the credit claimed for the sum paid to Carrie Barhite, and to the allowance for commissions, Mr. D. B. Me dreary was appointed auditor to hear and determine the exceptions and, if necessary, to restate the account. The auditor found, in substance, that the testator died on January 26, 1886, near eighty years of age, bequeathing his entire estate to his three sons, Alexander Barhite (the accountant), and Peto;r and Wesley Barhite. His wife had died about ten years before bis death, and soon afterward all his children married and left home. About nine years before he died his granddaughter, Carrie Barhite, the daughter of the accountant, came from the home of her father in Iowa, at her grandfather’s request, to live with him. She was then between 18 and 19 years of age. Her grandfather had a large estate; though living on a small parcel oí ten acres of land, he did a large business as a money lender, the inventory of his estate at Ms death aggregating over $90,000. The granddaughter, Carrie, kept house for him, performing all the ordinary household duties, and occasionally assisted him in the outside work on the place. He furnished her clothing, but she never demanded or received from him any money. He was unable to read or write, and she rendered him very valuable aid in the transaction of his business, computing interest for him and keeping his business in shape. After his receipt of letters testamentary, the accountant had paid to Carrie Barhite, who was his daughter, the sum of $8,675, for her services to her grandfather, and had taken her receipt therefor. There was testimony that when the testator sent the request for his granddaughter to come and live with him, it was accompanied by a statement “that he would pay her,” and that in speaking of her services in his financial affairs he frequently said “ he did not know how he could get along without her, and that he intended or would pay her well.” There was no evidence of an express contract to pay, made between the parties themselves. The auditor found, “ first, that in the absence of an express contract, which in this case the evidence does not show, Carrie Barhite cannot recover compensation from her grandfather for the labors and duties of the household; second, that for her services rendered him in his business transactions there was an implied obligation on his part to pay her what they were reasonably worth.” He found also that as her claim against the estate was an entirety, it was not affected by the statute of limitations, and, determining from the testimony that $410 per year would be a fair compensation for her entire services, and $120 per year a reasonable amount to deduct for household duties performed, making $290 per -year, or $2,537.50 as the entire amount of her claim, the auditor sustained the exception to the credit claimed for the payment to her, to the extent of $1,137.50. Upon the exception relating to the commissions, the auditor disallowed commissions upon the advancement of $5,000 to Wesley Barhite and upon $4,337.27, which represented the accountant’s own debt to the estate, reduced the commissions upon the balance to five per cent, restated the account accordingly and charged the costs of audit to the estate. To this report, Peter and Wesley Barhite filed exceptions alleging error in allowing any credit for the payment to Carrie Barhite, and in charging the costs of audit to the estate. The accountant also filed exceptions alleging error in not allowing credit for the full payment made to Carrie Barhite, and in reducing his commissions upon the estate accounted for. On August 27, 1888, the court, Gunnison, P. J., filed the following opinion: The first exception on behalf of Peter and Wesley Barhite is to the amount allowed the accountant for his payment to Carrie Barhite, and the refusal of the auditor to sustain in whole the second exception to the account filed by the executor. The learned auditor has found as a fact that Carrie Barhite went to live with her grandfather without any express contract-on his part to pay for her services; that she was not there as a servant or employee; and decided that she was not entitled to any compensation from his estate for the ordinary household services performed by her. He is of the opinion, however, that the rule of law which governs in the case of household services, does not apply to the case of the services performed by her for the decedent in the transaction of his business. For those services he has found that she was entitled to compensation. I cannot agree with him in that- finding. There was not sufficient evidence upon which to find that an express contract was made to pay her for the household services, and, as to the other services, there was absolutely no evidence of any contract so far as they are concerned. It does not appear that the decedent requested that they be rendered. She was, as the auditor has found, a member of the household, and, while such member, rendered important and almost daily assistance to him in his business transactions; hut I can see no distinction, as to her right to compensation, between such services and those for which the auditor has found she was entitled to no compensation. 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. This exception is therefore sustained. The appointment of an auditor, and the proceedings before him, were made necessary by the erroneous account filed by the accountant, and no sufficient reason has been given why he should not pay the expense incurred. The sixth exception on the part of Peter and Wesley Barhite is therefore sustained. The decision as to the exceptions filed by Peter and Wesley Barhite disposes of those filed by the accountant; they are all dismissed. The account having been restated and a final decree entered in accordance with the foregoing opinion, the accountant took this appeal, assigning as error the opinion and decree surcharging him with the amount paid to Carrie Barhite, reducing his allowance b3r way of commissions, and placing the costs of the audit upon him.