
    Doremos v. Lott et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    June 25, 1888.)
    Master and Servant—Compensation—Implied Promise to Pat.
    Plaintiff, from the time she was 11 years old, lived for 28 years with testatrix. She received no education whatever; testatrix assigning as a reason for not sending her to school that she desired plaintiff to work. Testatrix, 13 years before her death, told a third person that she had theretofore clothed plaintiff, but thereafter she must buy her own clothes. Testatrix left plaintiff no legacy in her will, though she expressed a desire to change her will so as to do so. Held, that plaintiff was not a member of the family, and that she could recover from testatrix’s estate the value of her services since she became of age.1
    1 On the subject of the necessity of showing an express promise in order to overcome the presumption that services are gratuitous when rendered by a member of the family of the person served, see Ulrich v. Arnold, (Pa.) 13 Atl. Rep. 831, and note.
    See, also, Brown’s Appeal, 5 Atl. Rep. 13, and note; Dodson v. McAdams, (N. C.) 2 S. E. Rep. 453; Ormsby v. Rhoades, (Vt.) 10 Atl. Rep. 722; Mobley v. Webb, (Ala.) 3 South. Rep. 8lk
    Appeal from judgment entered on report of P. E. Dana, Beferee.
    Action by Emma L. Doremus against Abraham Lott and George Bostrand, as exec ft tors of the last will and testament of Adriana Lott, deceased, to recover a balance claimed to be due for services rendered to their testatrix as servant, housekeeper, and nurse during the last 13 years of testatrix’s life, and down to the time of her death, on April 8, 1886, at the age of 83. Plaintiff had previously worked for and lived with the deceased and her mother and sister, who had taken plaintiff to do work in 1857, when she was 11 years old. In 1872 the mother and sister died, leaving the plaintiff and testatrix alone; and it was at this time that the arrangement was made about clothing plaintiff. On a trial before a referee there was a finding for defendants, and from the judgment entered thereon plaintiff appeals.
    
      A. B. Carrington, for appellant. John H. Kemble, for respondents.
   Pratt, J.

It seems to me this case falls within the exception to the rule that, where one lives with another as a member of the family, to be provided for and brought up as such member, for services rendered while in this relation no recovery can be had. The plaintiff was not a relative of the deceased, and the proof shows that she was not treated as if she had been a daughter of the testatrix. It may well be that for several years the board and clothing of the plaintiff was an equivalent for her services; but this cannot be said of the later years of her service. The fact that the plaintiff ate at the same table, and joined in conversation, is not conclusive that she was treated as a member of the family, especially in view of the fact that she was not permitted to attend school, but was required to work continuously as a servant. The testatrix refused to send the plaintiff to school, giving as a reason that she desired her to work. This indicates that she did not receive her into the family to be treated as a member thereof. The plaintiff received no education whatever, although there was a free school in the immediate neighborhood. The evidence was sufficient to warrant the inference that plaintiff was to be remunerated for her services. The testatrix stated to a third party, in 1872, that she had up to that time clothed the plaintiff, but now she coukl buy her own clothes. Such a statement indicated that some arrangement had been made by which the plaintiff was to receive wages. The fact that the testatrix desired to change her will, and give plaintiff a legacy, shows that either she thought the plaintiff had not been paid, or that she deserved a gratuitv for kind and faithful services. The inference can be fairly drawn from all the testimony that, in a legal sense, the plaintiff was never regarded as a member of the family, but rather as a favored servant. In any event, we fail to see, under all the circumstances, why she should not have been allowed for services after she arrived at full age. Shirley v. Vail, 38 How. Pr. 413, 414. Judgment reversed, and new trial ordered.  