
    In the Matter of the Estate of Charlotte W. Pearl, Deceased. J. Eugene Street, Respondent, v. Henry B. Ransom, as Executor, etc., of Charlotte W. Pearl, Deceased, Appellant.
    
      Olaim against a decedent’s estate for repairs to a house in which the decedent lived with the claimant, her tenant —-evidence insufficient to-sustain it.
    
    Where upon the reference of a disputed claim against an estate for the value of repairs made by the claimant during the years 1897, 1898 and 1899, to a dwelling house which the claimant rented from the decedent, it appears that the claimant’s wife had been brought up in the decedent’s family, and that during all the time the repairs were being made the deceased lived with the claimant and his wife in the house to which the repairs were made and gave directions in reference thereto, and that the claimant never said a word to the decedent in reference to payment for the repairs; that he regularly paid his rent to the decedent without making any deduction or request ■for déduction on account of such repairs, and that he kept no account of the work done and materials furnished by him and made no memorandum thereof until after the death of the decedent, the inference is irresistible that the repairs were made without expectation of any reward other than such as the decedent might choose to give to the claimant and his wife by her will, and a finding that the claim was valid will be set aside.
    Appeal by the defendant, Henry B. Ransom, as executor, etc., •of Charlotte W. Pearl, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Clinton on the 26th day of January, 1901, upon the xeport of a referee.
    
      O. J. Vert, for the appellant.
    
      Demid II. Agnew, for the respondent.
   Smith, J.:

The judgment herein was entered upon, the report of a referee ■appointed pursuant to the statute upon the rejection of plaintiff’s ■claim against the decedent’s estate. The finding of the referee is in substance that the plaintiff lived in the dwelling house of Charlotte W. Pearl, deceased, during all the time from 1897 to 1899, •and that during such time he made repairs on said dwelling house -and furnished material therefor of the value of $228; that the said Charlotte Pearl was present at the time the repairs were made and gave directions as to the same. Upon these findings of fact he bases his conclusion of law that the plaintiff has a valid claim against the estate for said $223.

The only evidence connecting Mrs. Pearl in any way with these repairs is the evidence of the wife of the plaintiff. She swore in substance that while these repairs were being made Mrs. Pearl was there at the house most of the time; that she was present at some times and saw the work being done. When asked if she gave any directions the witness said: “Yes, sir, she suggested things she wanted done. I cannot state the nature of the repairs except the painting; I know Mr. Street did the painting and furnished the material and plastered and did many things he has not put in the list, such as papering and fixing her rooms up; things like that to make her comfortable.” While the plaintiff is allowed to.testify freely without objection being made to any testimony under section 829 of the’Code, he gives no testimony as to any conversation with the deceased in reference to the work, or as to any fact from which any promise, express or implied, could be deduced. On the other hand, it appears from the evidence that the plaintiff’s wife had been brought up in the family of the deceased; that, she called the deceased. Mother ; ” that during all the times these repairs were being made the plaintiff was renting the house upon which the repairs were made from the deceased, who was living with them. He swears himself that he never said a word to the deceased in reference to payment for these repairs, and he regularly paid the rent that was due during 1897, 1898 and 1899 without any deduction, or request for deduction, therefrom, by reason of any services rendered or materials furnished. No account whatever was kept of the work or of the materials furnished, and no memorandum of the work or the materials furnished was made by the .plaintiff during all these years, until after the death of Mrs. Pearl. Prom all this testimony, to my mind, the inference is irresistible that this work was done without expectation of any reward other than such as the deceased might choose to give to the plaintiff and his wife by her will. There was no express or implied promise to pay therefor, .and the conclusion of the referee is wholly unwarranted by the evidence. '

The judgment should, therefore, he reversed on the law and the facts, referee discharged and a new trial granted, with costs to the appellant to abide the event of the action.

All concurred.

Judgment reversed on law and facts, referee discharged and new trial granted, with costs to appellant to abide event.  