
    CASE 28. — ACTION BY HENRY CONWAY, &C., AGAINST WILLIAM CONWAY, &C. FOR SERVICES RENDERED IN NURSING THEIR SICK MOTHER. —
    Nov. 5.
    Conway, &c. v. Conway, &c.
    
    Appeal from Nicholas Circuit Court.
    L. P. Fryer, Circuit Judge.
    From a directed verdict for defendants the plaintiffs appeal. —
    Affirmed.
    1. Work and Labor — Services Between Persons in Family Relation — Implied Contracts. — Wheire the relationship of persons raises the presumption that they lived together for mutual convenience, the law will not imply a promise to pay for their services rendered each other, but will’ require stricter proof to establish such a contract than is required in ordinary cases.
    2. Executors and Administrators — Payment of Claims — Personal Services of Son- — Necessity for Express Contract. — There is a natural obligation owing from a son to an invalid mother; and, to recover from her estate for services rendered her, he must show an actual contract for compensation.
    3. Executors and Administrators — Payment of Claims — Personal Services of Son — Evidence of Contract. — Evidence held not to show a contract between a mother and her sons for payment for their services in earing for her.
    
      WM. CONLEY for appellants.
    1. We submit, that the character and extent of services- rendered by the claimants, were not such as any child might be expected to render to a parent without expectation of reward, and that they were not so rendered, is we think, clearly established by the evidence. These services were n-ot trivial nor occasionally rendered, but consumed the whole of two and a half years of their lives, and at a time of life when their time meant much to one in their circumstances. And while they were rendering this service for their mother no other person in the community could be hired to do the work there, in the way they did it, and these'contestants Fánn-ie Perrin-e and Ben Conway were then sowing and reaping and hording for themselves, not volunteering nor rendering any service without expectation of reward, but were compensated for such 'as they did render.
    2. We submit that the evidence in this case shows that there was a promise and agreement made by decedent with appellants to compensate them for their services.
    MORGAN & DARRAGH for Ben Conway and Fannie Perrine.
    QUESTIONS DISCUSSED AND AUTHORITIES CITED.
    Compensation can not be recovered for services where the relationship of the parties is such as to raise the presumption that they lived together as a matter of mutual convenience,, and where a moral obligation rest on the claimants to render services, they must show an express contract to compensate. (Reynolds v. Reynolds, 92 Ky., 556; -Price v. Price’s Exr., 101 Ky., 28; Wallace v. Denney’s Admr., 90 S. W., (Ky.) 1046; Northrip’s Admr. v. Williams et al., 100 S. W„ (Ky.) 1192; Folly v. Dillon et al., 105 S. W., (Ky.) 461; Baugh, &c. v. Baugh’ Admir., -109 S. W., (Ky.) S45.)
   Opinion of the Court by

Wm. Rogers Clay, Commissioner —

Affirming.

Appellants, Henry Conway and Johnson Conway, seek in this action to recover for alleged services rendered their mother in nursing and taking care of her for a period of several months prior to her death. Their claims were first filed with the master commissioner in a suit brought by them and the administrator of their mother’s estate for a settlement thereof. The commissioner reported in favor of the claims. Appellees, Fannie Perrine and Ben Conway, filed exceptions to this report. Thereupon counsel for appellants moved for a trial suit out of chancery. This was granted. Upon the conclusion of the testimony for appellants, the court gave a peremptory instruction for appellees.

The evidence in the case shows that the appellants, Henry'and Johnson Conway, resided with their mothr er for a period of about 2% years prior to her death. During that time their mother was frequently confined to bed, and needed constant attention. This attention was given by appellants. Indeed, it seems that they did most of the work about the house, such as cooking, washing, etc. They also managed the place upon which they lived. Two or three witnesses testified that the mother of appellants said she wanted them paid out of the money she had left. She also sppke of having a written contract drawn up. One of the witnesses testified that she said she wanted all her children who waited on her to have something extra. There can be no doubt that appellants performed valuable and efficient services in nursing and taking care of their mother. Now and then a considerable portion of their time was taken up by the attention which she demanded; but there is absolutely nothing in the record to show that any contract was made between appellants and their mother that they should be paid for their services. Even the expressions which she is said to have used to others were not made in appellants’ presence. In a long line of decisions this court has held that, where the relationship of the parties was sufficient to raise the presumption that they lived together as a matter of mutual convenience, the law will not imply a promise to pay for the services so rendered. To establish a contract for such compensation requires stricter proof than to establish an ordinary contract. There is a natural obligation owing from a son to an invalid mother. Filial duty, to say nothing of love and affection, should prompt him to do everything in his power for her comfort and welfare. Where he afterwards makes a claim against his mother’s estate for such services, he should be entitled to recover only where there is proof of an actual contract that he should be paid. The expressions alleged to have been used by Mrs. Conway were not sufficient to establish such a. contract. Foley v. Dillon, etc., 105 S. W. 461, 32 Ky. Law Rep. 222; Wallace v. Denny’s Admr., 90 S. W. 1046, 28 Ky. Law Rep. 978; Reynold’s Admr. v. Reynolds, 92 Ky. 556, 18 S. W. 517, 13 Ky. Law Rep. 793.

Judgment affirmed.  