
    Lindsey’s Appeal. [Jackson’s Estate.]
    On distribution, before an auditor, of tlie balance in the hands of an administrator, a sister of the decedent made a claim on a contract for compensation for services rendered decedent in her life-time. The evidence showed and the auditor found that decedent went to live with her married sister, where she remained, with intervals of absence, until her death, and was nursed daring her illness. She said to her sister and her husband, at different times, that she had no money then but they would be paid for the work. The decedent had said to others, but not in her sister’s presence, that she expected what she left would go to her sister when she was gone. Held, that the sister could recover a quantum meruit for her services.
    May 29, 1889.
    Appeal, No. 13, May T. 1888, by C. R. Lindsey et ah, collateral heirs, from the O. O. of Dauphin Co., to review a decree dismissing exceptions to the report of an auditor on the distribution of the balance in the hands of the executrix of Helen Jackson, deceased.
    The facts were found as follows by the auditor, Elias Hollinger, Esq.:
    “Aside from several small bills, about which there is no dispute, presented on behalf of creditors, a claim is presented by William S. Black and his wife, Margery A. Black, the latter a sister of decedent and the executrix under the last will and testament of decedent. This claim is made for services rendered said decedent in her lifetime, in the way of boarding, nursing and attendance during a long illness, and is opposed by brothers of decedent, who, under the laws of the commonwealth, would, with Mrs. Black, their sister, receive whatever is left after the debts and liabilities of the decedent and the collateral tax of the commonwealth were paid.
    “ This claim, which William S. Black makes upon this fund, is founded upon the following facts as they appear from the evidence:
    “Helen L. Jackson came to Harrisburg from Philadelphia on the 1st of November, 1882, to live with Mr. Black and his family, which consisted of Mr. and Mrs. Black and four children, two boys and two girls, the oldest of the children, a daughter, was then nearly 16 years of age; the other daughter is the youngest of the children. Mrs. Jackson remained with the Blacks, upon this occasion, until the 15th of April, 1883, when she went back to Philadelphia. She returned to the Blacks’ again on the 1st of April, 1884, where, with the exception of seven weeks in November and December of that year, she remained until the 12th of February, 1886, when she died. During the first period mentioned, from 1882 to 1883, consisting of twenty-three weeks, she, Mrs. Jackson, had heart trouble, and had Dr. Pitcairn attending her. During about half of this time she was quite helpless. She had to be fed, her meals had to be carried to her room, she could not speak above a whisper, she could not get up off her bed alone and at times could not even sit up in bed to eat her meals. Mrs. Black did her washing and ironing. Her room was cleaned every morning by reason of scales which were continually falling from her skin, which, over a large part of her body, had an eczemous eruption. In addition to shedding these scales, matter would ooze from the surface of the skin.
    “During the second period mentioned, from 1884 to 1886, consisting of eighty-nine weeks, this eczemous condition of the skin continued and her disease, which was an obstruction of the mitral valve, heart disease, was chronic and progressive and she was liable at any time to pass away. During this period, her condition was such, generally, that she was unable to lift a cup to her mouth, unable to get up out of the chair without assistance, or lie down in bed when she was propped up. She was, in the language of her physician, ‘ bedfast and chairfast.’
    “ [The only exception to this general condition was when temporarily her heart trouble was calmed by digitalis or some other remedy, when she could, without assistance, go down stairs and occasionally take a little walk outside the door.] [2]
    “Mrs. Jackson required at this time a nurse to help her on and off the stool (she did not visit the yard); she needed help to have her hands washed and her face washed; the eczemous eruption of her skin had to be covered with salve, and she required such other attentions as a patient with a helpless body and almost entirely helpless limbs would require. She was able to use her hands and arms for such things as writing and crocheting, but could not use her hands for any purpose which would require her to raise her hands above her shoulders. During all of the year 1885, and until her death, this woman could wear no shoes on account of her dropsical condition and the consequent swelling of her feet and lower limbs. This woman was well and carefully nursed, attended, washed and kept clean by Mrs. Black and her family during the entire time that she lived at their house.
    “ On the 31st day of March, 1884, the day prior to her coming to Harrisburg to make her home with her sister, Mrs. Jackson made her last will and testament, in which, after making several small bequests to nephews and nieces, she provided as follows: ‘All the rest and residue of my personal estate in money, not herein before disposed of, I give and bequeath unto my sister, Margery A. Black, the said personal estate in money to the use and benefit of her and her heirs absolutely.’ She also appointed her said sister the executrix of her said will.
    “ Prior to September, 1885, Mrs. Jackson’s estate consisted of personal property, and at said latter date she invested her money in real estate, of which, afterward, on the date mentioned, she died seized; to purchase this real estate and in part consideration of the purchase money, she gave the grantor of the said real estate a mortgage for $1,000.
    “ Mrs. Jackson told a witness, prior to her coming to live with the Blacks, that she was going to live with Mrs. Black and what little she left she would like Mrs. Black to have.
    “ She said afterward in the presence of Mr. and Mrs. Black: ‘ Madge and Will, I haven’t any money to pay you now, but you are to be paid for all this work.’ She made similar remarks at other and subsequent times while these services before described were being rendered.
    “ To a number of other witnesses at different times, and not in the presence of any of the Black family, she expressed regret that she required so much attention from the Blacks, but stated that she expected what she had left, after she was dead and gone, would go to Mrs. Black.
    “ It is argued, on behalf of Margery A. Black, that these repeated expressions lead to the conclusion that an express contract must have been entered into between Mrs. Jackson and the Blacks, whereby they were to have all that was left of Mrs. Jackson’s property after her decease — and that your auditor should so find. On authority of Miller’s Appeal, 13 W. N. O. 233, such a conclusion, in the opinion of the auditor, can not be drawn from the evidence. [These repeated expressions of Mrs. Jackson made to the witnesses, not in the presence of the Blacks, rather indicated that she believed her will to provide that Mrs. Black should have her property after her (Mrs. Jackson’s) decease, not understanding, or over-looking, the fact that a change of her property from personalty to realty would affect, materially, the .provisions of her will in that regard.] [3]
    “ The evidence does not disclose, as the auditor remembers, that the Blacks knew anything of a will prior to Mrs. Jackson’s death, nor does it appear that they knew anything of what Mrs. Jackson said to other persons in regard to her intention that Mrs. Black should have all that was left after the death of her sister. "What they did know was what Mrs. Jackson had said to them, to wit: that they were to be paid for all this work.
    “ [There was, therefore, under the evidence, a promise to pay, which the law says, in the absence of any other agreement, shall be determined as to amount by the value of the services rendered.] [4]
    “Upon this subject of the value of services there were two classes of witnesses offered and heard before the auditor.
    “ The one class of witnesses was made up of professional nurses, who were asked to state, upon the presentation to them of a hypothetical case, what nursing in such a case as stated to them would be worth. There was considerable difference of opinion between counsel as to the hypothetical case fairly representing the case in hand. While, therefore, the evidence of that class of witnesses, so far as they gave any light on the subject, did not materially differ, so far as a comparison could be made with the evidence of the witnesses of the second class, to wit: the attending physician and other physicians who knew the case, and neighbors who frequently visited either the decedent or the Black family. The auditor relied upon the testimony mainly of the second class of witnesses to assist him in coming to a conclusion upon the value of the services rendered.
    “During the last thirteen months of her life, while her dropsical condition, in addition to her other troubles, continued, it seems that Mrs. Jackson was, generally speaking, more helpless and a greater care than prior to that time, therefore, for that period, under the evidence, the auditor would suggest $4 a day for nursing and washing as fair compensation. For the remaining part of the occasion of her last stay with the Blacks, to wit, from April 1, 1884, until her visit to Philadelphia, $3 a day is in accord with the evidence upon that point, as well as $3 a day during the time of her first stay, to wit: the twenty-three weeks in 1882, 1883. The witnesses who testified upon this point, distinguished between nursing and washing on the one hand, and boarding and lodging on the other, and for the item of boarding and lodging the auditor concluded to suggest the sum of $10 a month as reasonable compensation, considering the latter item in connection with the item of nursing as before indicated. These suggestions lead to the following allowance indicated by the auditor, viz :
    13 months (390 days) nursing, etc., @ $4 . $1,560.00
    7 months and 20 days (230 days) nursing, @ $3 690.00
    23 weeks (161 days) nursing, @ $3 483.00
    26 months, boarding and lodging @ $10 . ' . 260.00
    “ Total......■ . $2,993.00 ”
    After deducting costs of audit and preferred' claims, the auditor awarded the balance, $2,450.47, to Mrs. Black.
    
      To this report, the. brothers of Mrs. Jackson filed the following exceptions:
    “ 1. The 'statement of the finding of facts is partial, one-sided and unsupported by the testimony of claimant’s witnesses, and is unfair to the case of exceptants in that the auditor gives no weight to the uncontradicted testimony of witnesses as to the physical condition of decedent during the time for which services are claimed. Further, he disregards entirely the testimony of the agreement, made about August 25, 1885, between decedent and claimant, as to the manner in which compensation for services rendered decedent by the claimant were to be paid!
    “2. The finding of facts [in brackets, 2, quoting them] not only contradicts the testimony, but is unsupported by any testimony in the case.”
    “ 3. The auditor erred as follows: [quoting the language in brackets, 3]. This is a mere supposition of the auditor. The legal conclusions from these repeated expressions of Mrs. Jackson, is that Mrs. Black performed all the services claimed for in expectation of a legacy, or in expectation of the devise to her (Mrs. Black) of the estate of Mrs. Jackson after her (Mrs. Jackson’s) death, and being disappointed, she cannot recover by a claim against this estate in this manner.”
    “4. The auditor erred as follows: [quoting the language in brackets, 4].”
    “ 5. The auditor erred in awarding to W. S. Black the balance of the fund, $2450.47.”
    The court filed the following opinion, by Simonton, P. J.:
    “Assuming the facts to be as found by the auditor, it is impossible that the amount of compensation allowed by him can have been earned.
    “It is not a question of the value, of the services of a trained nurse,'for no such services were rendered. There is no claim that anything approaching to the exclusive services of any one were rendered during much, if any, of the period for which compensation is demanded. Yet the auditor has awarded an average of about one hundred dollars per month for the whole period for the nursing and attendance given to the decedent by her sister, Mrs. Black, and, to some extent, we presume, by the daughter of the latter, who, much of the time, was attending school; and this, while all the work of the household was performed by its members, no hired help having been employed. From this last fact it is manifest that, in addition to the fact that whatever services were rendered were not those of a professional nurse, they cannot, in the nature of the case, have been constant. There are, therefore, two reasons why the wages of a professional cannot be allowed.
    “ It is quite possible that defendant intended to leave the mass of her estate to her sister, and that she would have been the most worthy object of decedent’s bounty, but she did not do so, and we have no authority to do it in her stead. And we are unable to conceive of any employment, open to them, in which Mrs. Black and her daughter, by their united services exclusively rendered, could have earned one hundred dollars per month.
    [“ We think we are going to the utmost verge of our sound discretion when we determine that no more than an average of twelve dollars per week, for the whole time found by the auditor, can be allowed, and the report and account is recommitted to the auditor for correction and redistribution accordingly.”] [1.]
    The auditor made a redistribution, saying, inter alia, as follows:
    [“ That upon calculations made in obedience to the opinion, as tiled by the court, he finds W. S. Black to be entitled, instead of the amount in his former report awarded for nursing, the sum of $1,338.85, wdiich, with the item for boarding and lodging (which the auditor understands not to have been disturbed by the court) of $260.00, makes the sum of $1,598.85.”] [2]
    The auditor changed the decree in accordance with this reduction and the court subsequently confirmed the same.
    C. B>. Lindsay, R. A. Lindsay and J. M. Lindsay, brothers of Helen Jackson, deceased, thereupon took this appeal.
    
      The assignments of error specified the action of the court, 1, in that part of the opinion embraced in brackets; 2, in confirming the finding of the auditor in the redistribution embraced in brackets; 3, in confirming the distribution of the auditor awarding to W. S. Black $1598.85; and, 4, in confirming absolutely the report of the auditor and his redistribution.
    
      James I. Chamberlain, and Wallace De Witt, for appellants.
    No implied promise can arise in this case because of the relationship of Mr. and Mrs. Black to Mrs. Jackson, and the entire absence of any testimony to indicate that the parties ever intended to contract, or that a contract was ever spoken of or hinted at.
    The nearer the relationship the less expectation of payment and greater strictness of proof to overcome the presumption. Miller’s Ap., 100 Pa. 570.
    In Hertzog v. Hertzog, 29 Pa. 468, the father said he intended to pay his son for all his work. In Bash v. Bash, 9 Pa. 260, the father said “ you shall be paid for all your work.” In this latter case, the court said the language indicated rather a present intention than a proposal to incur an obligation. See, also, Hartman’s Ap., 3 Grant, 275; and Graham v. Graham’s Exrs., 34 Pa. 481.
    Mr. and Mrs. Black, having performed thejjie services in expectation of a legacy or bequest, have no right of action against Mrs. Jackson’s estate. This is horn-book law. Lesage v. Cousmaker, 1 Espinasse, 188; Osborn v. Guy’s Hospital, 2 Strange, 728; Swires v. Parsons, 5 W. & S. 358; Little v. Dawson, 4 Dallas, 111; Hartman’s Ap., 3 Grant, 275.
    Thompson v. Stevens, 71 Pa. 161, and Roberts v. Swift, 1 Yeates, 209, where the services were rendered on request of decedent,_ are not applicable, for in this case there is no proof of any request by Mrs. Jackson; and Snyder v. Castor Admr., 4 Yeates, 353, decides, that where there is a promise to pay, it is immaterial whether the promise is made before or after the service.
    
      George Kunkel, with him Albert Millar, for appellee.
    Where the facts have been found by the auditor, and approved by the court below, the case must manifest most flagrant error in order to justify the supreme court in interfering with the report. Even on appeal, as distinguished from a writ of error, they cannot be called upon to try questions of fact. Mengas’s Ap., 19 Pa. 222 ; Bull’s Ap., 24 Pa. 286; Whiteside’s Ap., 23 Pa. 114; Loomis’ Ap., 22 Pa. 312; Burroughs’ Ap., 26 Pa. 264; Dellinger’s Ap., 71 Pa. 425; Bedell’s Ap., 87 Pa. 510. See, also, 5 Pa. 413; 30 Pa. 478; 2 Grant, 311; 2 Brewster, 202; and 1 Phila. 52.
    Implied contracts are such as reason and justice dictate, and which, therefore, the law presumes that every man undertakes to perform. 1 Cooley’s Blackstone, VoL.1) p. 442.
    Generally when services have been rendered by one person to another, the law presumes a promise on- the part of him who has received them to pay what the services were reasonably worth. Smith v. Milligan, 43 Pa. 108.
    This court has frequently declared that no relationship excepting that of parent and child is sufficient, of itself, to refute the implication of a contract to pay where services are performed. The following were held insufficient: First cousins. Neal’s Exs. v. Gilmore, 79 Pa. 421. Niece by marriage. Gordner’s Administrators v. Heffley, 49 Pa. 163. Brother’s wife. Russell’s Estate, 7 Phila. 64.
    In all other eases than that of parent and child, there must be evidence, beyond the relationship, that the creation of no debt was intended. Smith v. Milligan, 43 Pa. 109 ; Miller’s Appeal, 100 Pa. 570.
    . Whether such presumption to pay ■■ is overcome by other evidence is a question of fact to be submitted to the jury. Smith v. Milligan, supra.
    A consideration may be said, in general, to be some act or undertaking stipulated by the promisor, and performed or entered into ■ hy the promisee on the faith of the engagement which he is seeking to enforce. It may be detrimental to the plaintiff, or beneficial to the defendant. Hare on Contracts, 118; 2 Addison Contracts, 19.
    The cases of Herzog v. Herzog, supra; and Bash v. Bash, supra, were cases of parent and child. In Hartman’s Ap., supra, the declarations were not made to the claimant.
    It • is a matter of indifference what the appellee’s expectations were, if the services and attendance were rendered'on the implied or express request of the decedent. Thompson v. Stevens, 71 Pa. 161; Roberts v. Swift, 1 Yeates, 209; Snyder v. Castor’s Admr., 4 Yeates, 353.
    
      Oct. 1, 1888.
   Per Curiam,

Regarding, as we do, the disposition, of this case in the court below as thoroughly just and proper, we affirm the decree and dismiss the appeal at the costs of the appellants.

Trunkey, J., absent from this and the preceding case.

W. M. S., Jr.

Note. — From the fact of work done or goods furnished the law raises the presumption of a promise to pay, as between strangers. This presumption may be rebutted by positive proof or by a stronger presumption. “ Special presumptions take the place of general ones.” Bouvier. Where the parties are members of the same family, the relationship excludes the implication of a promise. Miller’s Ap., 100 Pa. 571; Neel’s Admr. v. Neel, 59 Pa. 349; Wall’s Ap., Ill Pa. 468. It seems that no relationship, except that of parent and child, is sufficient, of itself, to raise the presumption that no payment is intended. “ In the absence of a family relation, the mere consanguinity [of grandfather and grandson] of itself is perhaps insufficient for that purpose.” Clark, J., in Moyer’s Ap., 112 Pa. 293. The latest case on the subject is Barhite’s Appeal, decided May 13,1889. It was there held that a grandfather’s estate was not liable for the personal services of a granddaughter, where there was a family relation, the daughter going from her father’s house to her grandfather’s, when she was nineteen years old.

The rule is definite where the relationship is that of parent and child, and, probably, where the family relation is similar to that of parent and child, but where the relationship is more remote, the rule is not so certain. “ The question always is whether the parties contemplated payment and dealt with each other as debtor and creditor.” Trunkey, J., in Miller’s Ap., supra. It seems to be a question for a jury or an auditor, upon all the evidence; but what evidence is sufficient to support the finding is not clear.

In Pierce’s Ap., 1 Ches. Co. 93, an auditor found that no promise to pay for services would be presumed where the relationship of brother and sister existed, coupled with the facts that the sister lived with the brother many years after the death of their father, in the same house and in the same way as before his death; was treated as a sister and not as a menial or housekeeper; that both remained single; that no accounts were kept by either of the parties or settlements made, the claim running back as far as the statute of limitations would allow, without suggestion that the previous time was paid for. This was approved by the court below and affirmed by the supreme court.

In Barry’s Ap., 2 Cent. E. 291, the relationship was that of brother and sister; the sister came to live with her brother at her own request; board was furnished to her for five years immediately preceding her death; no payments were made by her; the brother was a laboring man, dependent upon his daily wages for his support ; and the sister said to her brother when she went to live with him that she was the owner of a considerable sum of money. The auditing judge disallowed the claim but the court sustained exceptions, and allowed the claim, and this was affirmed by the supreme court. It would seem that the above facts might support the finding of the auditing judge. The report of the case, however, does not show clearly what were his findings.  