Daubenspeck v. Powers

Rat, J.

The appellee filed a claim against the estate of *43 his wife’s deceased father, for the boarding of the decedent in his lifetime, at intervals during eighteen years preceding his death.

W. Grose and T. B. Bedding, for appellant. J. H. Mellett, J. Brown, and B. L. Folk, for appellee.

On the trial, the appellant offered to prove that the decedent lived as a member of the family and performed various services for the appellee during said time, for the purpose of re.butting any implied promise on-the part of the decedent to pay for his- board. This evidence was excluded by the court.

The court also instructed the jury, that the fact that the decedent‘was the father-in-law of the appellee raised no presumption, in the absence of an agreement, that the appellee is not entitled to reasonable compensation for the hoarding.

This was not a correct statement of the law. It was held, in King’s-Adm’r v. Kelly, 28 Ind. 89 , that the fact that a mother-in-law resided in the family of her son-in-law, as a member of the family, created no liability against her estate for the value of her boarding. As there had béen no contract to pay for boai’ding proved, and no implication of a contract could result from' the facts proved, it was not .important to introduce the proof offered, for the purpose stated, though the evidence would have been proper to show the circumstances under which the decedent resided in the family of his son-in-law. The instruction, however, given to the jury, would have conveyed a much more accurate idea of the law, if it had stated that the marriage connection between the appellee and the deceased ■ rebutted any presumption of an implied promise to pay for- board, while living with the appellee, which would have existed in the absence of such a relation between the parties.

For the error in the instruction given, the case must be reversed and remanded for a new trial.

Reversed, with costs.