
    Matter of the Judicial Settlement of the Accounts of Josephine S. Dusenberry (now Schmalling) et al., as Administrators of Jonah C. Brundage, Deceased.
    (Surrogate’s Court—Westchester County,
    December, 1894.)
    In the absence of a contract, express or implied, to pay for services performed by a child of the testator for him, a claim for such services against his estate cannot be allowed, as the presumption in such case is that the services were gratuitous. '
    Proof of statements made by the testator to third persons in the absence of the claimant and not communicated to her, that “ she ought to be paid” or that “she should be paid for what she did for him,” is not sufficient to take the case out of the rule.
    The intestate was a farmer living in the town of Eye. He lost his wife about 1879 and remained a widower until his death, which occurred about April 1, 1892, at an advanced age. He left him surviving two daughters and a son, the administratrix and Eose J. Lockwood and Frank S. Brundage, and four grandchildren, the children of deceased daughters. The administratrix, with her husband, who was in feeble health, went to live in the family of the intestate about 1883, the husband aiding in the farm work to some extent, and she assisting in the housework and pursuing her trade of a dressmaker. After about two and a half years the husband died, leaving no issue. The wife continued to live with the intestate until his death, doing housework and following her trade as she had leisure. She now presents a claim for services as housekeeper and as nurse, amounting to $850, which is disputed by some of the next of kin. The account filed shows the personal estate to be about $450.
    
      Platt <£) Thompson, for administratrix, claimant.
    
      Jamies B. Lockwood, for next of kin, contestants.
   Coffin, S.

The only matter in controversy in this case is in regard to the claim made by the administratrix for services, etc., rendered to the deceased during his lifetime. There is no evidence whatever of any express or implied contract between the deceased and the claimant as to compensation for her services, and in the absence of such contract, express or by fair implication, the authorities are abundant to the effect that she cannot recover, because of the relation between parent and child, the presumption being that such services were gratuitous, and such as were 'due from the child to the parent. Williams v. Hutchinson, 3 Comst. 312 ; Marion v. Farnan, 68 Hun, 383 ; Ulrich v. Arnold, 120 Penn. St. 170. Other cases might be cited, but these are deemed sufficient.

The only proof on which it is sought to base the inference that there was a contract is, that the deceased said to others, “ she ought to be paid,” “ she should be paid for what she did for him.” In no instance was the claimant present when these declarations were made, nor were they communicated to her, and they are not evidence of either an express contract or of a mutual understanding which would take the matter out of the well-settled rule.

. The claim is rejected.

Ordered accordingly.  