
    WILLIS v. DUN, ADMINISTRATOR, &c.
    Work by a child for his parent — implied assumpsit — witness—legatee—will.
    A claim against a testator’s estate for labor, is not cut off by the will bequeathing the claimant a legacy, unless it purports to be in view of such claim, and has been accepted.
    A legatee of a residuum is not a competent witness for the estate.
    A will containing a devise to the plaintiff, but is silent as to its being in lieu of the plaintiff’s demand, is not admissible to do away his right.
    A child may work for his father as an hireling, and recover for his pay.
    
      If a child, after adult, continue in his father’s family, working without stipulation for pay, and gets his subsistence in the family, the law will not imply a promise to pay. A son in such case, cannot, when he is disappointed in his father’s will, recover, for the service was gratuitous when rendered.
    Assumpsit, for work, &c. Plea non assumpsit.
    The case made in proof, was of work done by the plaintiff, after he came of age, but before he was married, for his father, in his lifetime, and also for other work done after he was married and had a separate family.
    The defendant called R. Willis, a son of the testator, and one of the legatees of the estate.
    It was objected to him, that he was interested and incompetent.
    
      Nichols and Cowen, for the plaintiff.
    
      Hubbard, contra.
   By the Court.

The witness is directly interested. If the plaintiff recover, whatever is the amount, it lessens the fund to be distributed to the witness — if he fail, the sum is increased — he cannot be sworn.

The defendant then offered in evidence, the will of the father, in which a legacy of several hundred dollars is left to the plaintiff. This was objected to.

By the Court. We do not see how the will can be used. The legacy does not purport to be a compensation for labor, and it has not been paid over to the plaintiff. The evidence is rejected.

Wright, J.

to the jury. If the plaintiff worked for his father while living at home, in the way children commonly do, without agreement for pay, whatever may have been his own calculations of favor from his father’s will, he has no legal right, if disappointed, to turn round and make that a work for hire, which when done was gratuitous. The law implies a promise to pay for labor when one does it for another, though there is no special agreement; but that presumption does not hold when a child, though adult, makes his home with his parent, works for him, and gets his subsistence from the family: ante 89. A son may labor for his father as an hireling, and be entitled to payas one. You will take all the circumstances of this case into view, and if you find the plaintiff has labored for the defendant for hire, you will find a verdict for him for so much as the services were reasonably worth, deducting what he received while the work was in progress, if any thing.

Verdict and judgment for the plaintiff, for three hundred and forty dollars,-'  