Seavey v. Seavey

■When parent and child reside together, as members of one family, no contract to pay for services, or for articles furnished for family use, will be presumed, unless there is further proof of some contract or understanding that they are to be paid or accounted for. Inventories of the estates of persons deceased are admissible ns primó, facie evidence, for or against strangers, for many purposes; being made by persons appointed under authority of law, to investigate a matter of fact of general interest, under oath, and to make a return or report upon the subject, to be preserved of record.

This was an appeal from the decision of the commissioner of insolvency upon the estate of John W. Seavey, late of Rye, deceased. The declaration was in assumpsit, containing seven counts. The first was upon an account annexed, amounting to $2,304, in substance as follows: 1855: Dec. 23. To the use and occupation of lands in Rye, set off to the plaintiff, as her dower in the estate of J. L. Seavey, ten years, from August, 1845, $600.00 To use and occupation of one fifth of the farm of J. L. Seavey, from September, 1846, nine years, being Ann Elizabeth’s share, 324.00 To the labor and services of the plaintiff, as house-keeper, from August, 1845, ten years, at 9s. per week, 780.00 To use of stock, farming, and other utensils, and furniture, ten years, from August, 1845, 250.00 To wood and timber, cut from dower and land of plaintiff, during ten years, from August, 1845, 350.00 $2,304.00 The second count was special, for the use of dower, ten years; the third special, for the use of one fifth of the farm ten years; the fourth, a general count, for labor and services; the fifth, a general count, for the use and hire of divers goods and chattels; the sixth, a general count, for goods, wares and merchandize sold and delivered; and the seventh, a special count, for wood and timber cut and sold. Plea, the general issue. On the trial it appeared that the plaintiff was the widow of J. L. Seavey, formerly of Eye, deceased; that her husband died in August, 1845, leaving her a widow with five children, three of whom were minors, and among the latter, J. ~W. Seavey, the defendant’s testator, who was then less than 17 years of age. One of the children', a daughter, was less than five years old. The plaintiff administered on her husband’s estate, and in her administration account, settled May 9, 1848, charged and was allowed $88.25, for the support of the infant daughter until seven years of age. After the death of the husband and father, the mother and three minor children resided at home, until about November 18, 1847, when the eldest of the three, having eome of age, and being about to be married, conveyed her interest in her father’s estate to her mother, for $500. Dower was assigned to the widow, March 16, 1847. Immediately after his father’s death, J. V. Seavey, the testator, took charge of the farm, and carried on his own share, his mother’s dower, and the shares of his two sisters, who were minors, and continued to do so till his death, in December, 1855; he and his mother and two sisters living together in one family, as before the father’s death, until the marriage of the eldest sister, and the conveyance of her interest to her mother; after which the mother, J. ’W’., and the youngest sister, lived together, as before. The mother did the work in the house, and J. W. carried on the lands. In April, 1854, J. W. married, and after his marriage his wife took charge of the affairs in the house, so far as her health permitted, and the mother was absent ten or eleven weeks, during a portion of which period she received wages for her services. J. "W. and his wife died of consumption in December, 1855, and both the mother and daughter presented to the commissioner, and were allowed, claims for nursing them in their last sickness. There was evidence that J. W. cut and sold from the dower, and the fifth of the farm conveyed to the mother by the daughter, in November, 1847, with the mother’s assent, wood and timber to some extent, and received the proceeds thereof. He also cut, partly from the dower and said fifth, and partly from his own share of the farm, and that of his youngest sister, timber, for a new barn, which he erected with the plaintiff’s assent, upon her dower. J. "W". paid the physician’s bills of his mother and youngest sister, with the proceeds of hay sold from the lands he carried on. After the marriage of J. "W., his mother and youngest sister, himself and wife, constituted the family, as before, the only difference being that his wife presided at table, and took charge of the household affairs, instead of his mother. On one occasion J. W., with his mother’s assent, received in labor upon the farm, $11 rent for a portion of the house occupied by a family, and which belonged to the mother. Occasionally the mother sold produce of the farm and dairy, and therewith purchased clothing for herself and youngest daughter, and groceries for the use of the family; and J. W. sold wood, timber and produce of the farm, and therewith purchased shingles, and paid for labor in re-shingling the house, and for constructing and shingling the new barn on his mother’s dower, with her assent. There was no evidence that any discord or controversy in relation to the management of the farm, or to the affairs of the household, ever occurred between the mother and son, or that any charges or claims were ever made or adjusted between them. The plaintiff had offered evidence tending to show the expenses of her son in his sickness, to explain this; and to show the improbability of the alleged indebtedness of the son to his mother, the defendant offered in evidence, together with evidence of the amount of the plaintiff’s property, a copy of the inventory of the son’s estate, from the probate office. To this copy the plaintiff objected, as incompetent, bnt the court admitted it. The court instructed the jury that where the relation of parent and child is shown to exist, the law will presume no other; that the superior relation is presumed to continue, until some evidence is offered that the inferior one of debtor and creditor, or master and servant, has been substituted for it. In the present case they would presume that the relation of parent and child continued between the parties, and governed their transactions and intercourse with each other, unless there was some evidence that an express or implied contract was entered into between them, changing that relation and substituting for it that of debtor and creditor, or master and servant. If there was any evidence before them that any express contract was ever entered into between the parties, creating between them the relation of debtor and creditor, or master and servant, they should consider it, and give to it its full weight, and find by their verdict for the plaintiff whatever indebtedness accrued to her from such express contract; and so, if there were any evidence of any implied contract ever existing between the parties, whereby the son became indebted to the mother, they would find for her the amount of such indebtedness. The court further instructed the jury, that they should charge the defendant with the value of wood and trees cut upon the mother’s portion of the father’s estate, if they found, upon the evidence, that the wood and trees were cut, or the proceeds thereof, received by the defendant, with any agreement, understanding or expectation between the deceased and his mother, at the time, that the deceased was to pay for them. If the deceased had the property, or the use of property belonging to his mother, or her services, under any agreement, or with any understanding or expectation between the parties at the time, that the deceased was to account or pay for them, the plaintiff was entitled to recover for them. But if they found, from the evidence that there never was any express contract or implied understanding between the parties, by which either became indebted in any way to the other; if all the transactions between them arose from the relation of parent and child, as it existed between them in the family, with no express or implied agreement or expectation between them, at the time, that any indebtedness was to result therefrom, the plaintiff could not recover. If there was no agreement, understanding or expectation, at the period of the transactions between the parties, that the son was thereby to become indebted to the mother, or the mother to the son, it was not in the power of either afterwards, upon any change of circumstances, to make a valid claim of indebtedness by reason thereof. The court further instructed the jury, that if they found, upon the evidence before them, that the parties carried on the farm together, with any agreement, understanding or expectation, that each was to account to the other for any balance of the proceeds received by one, that belonged to the other, and they found, upon such accounting, that the son at his death was thereby indebted to his mother, they would give her by their verdict the amount of such indebtedness. The jury found a verdict for the defendant, which the plaintiff moved should be set aside for the supposed errors in the admission of evidence, and in the instructions.