
    Samuel Percival, Administrator, ads. Epsey McVoy.
    A debt due to the plaintiff as a nurse, may be properly included under the denomination of expenses of the last illness, as expressed in the Act of 1789. _
    _ No rule or limitation for the duration of the last illness, or for the degree of attention to be paid, can be laid down; it will vary with the nature of the disease, and the situation of the patient.
    BEFORE O’NEALL, J., AT COLUMBIA, SPRING TERM, 1838.
    This was an action of assumpsit, brought by the plaintiff to recover for services rendered to the defendant’s intestate as a nurse; and particularly for the last year of his life, which was the period of his last illness. The pleas were non assump-sit., and plene administravit prceter a particular sum, which was applicable to judgments recovered in the lifetime of the intestate To the latter plea, the plaintiff replied that her demand was a preferred debt, being a part of the expenses of the last illness.
    It was proved, that nearly twenty years before his death the intestate took the plaintiff and her two children into his house as members of his family, and treated them as such. During her residence with him, she frequently served as a nurse in other families; her children were raised and mar-riecL at the bouse of the intestate, and one or both of them lived there some time after marriage.
    The last year of the intestate’s life, be was lingering under the disease which finally terminated bis existence; his wife bad previously died, and the plaintiff was his constant attendant and nurse. Shortly before bis death, be said she must be paid for her services, and that be would make some arrangements-to have it. done. Her services were proved to be worth one dollar per diem, which exceeded the amount claimed by her. The intestate had very competent servants (slaves), particularly a woman who was an excellent nurse.
    The presiding Judge instructed the jury, that if the services of the plaintiff were originally intended to be without charge, she could not be allowed to claim compensation for them; and if the case rested on the implied contract alone, he thought she could not recover. But if the jury believed, from the testimony, that the intestate had agreed and promised to pay her for her attention to him as a nurse during his last illness, they might on that ground find for the plaintiff; on the plea of the general issue. And if the services were rendered as'the intestate’s nurse during his last illness, and were necessary to his ease and comfort, that then the plaintiff’s demand would be entitled to' rank as “ expenses of the last illness,” The jury found for the plaintiff two hundred and forty dollars.
    The defendant moved for a new trial, on the ground that the plaintiff did not live with the .intestate in the capacity of a hireling or servant, but .was received .into his family as an object of charity, and both she and her children were maintained and supported by him during his life; and also because the demand of the plaintiff was not entitled to rank as “expenses of the last illness,” in the administration of the assets of the intestate, and take precedence of judgments, mortgages and executions.
    
      De Saussure, for the motion.
    -, contra;
   Richardson, J.,

delivered the opinion of the Court.

Since the verdict of the jury which established that the plaintiff’s services were not gratuitous, and that they were rendered to the intestate, Robert Yates, during bis last sick ness, it remains for this Court to decide only, whether an account for nursing, or attending Mr. Yates, during a whole year, more or less, can come under the denomination of expenses of his last sickness; so as to take preference to judgment creditors under the Act of 1789, P. L, 491, and to be first paid by the administrator, in marshalling the assets of his intestate.

This Act directs the debts to be paid in the following order : "Funeral and other expenses of the last sickness,” — next, debts to the public — next, judgments, &c., page 494.

The issue made up presented the question, and the jury have decided that the services were rendered during the last sickness.

The Court can lay down no rule or limitation for the duration of the last sickness of a man, nor for the degree of attention to be paid him. A wounded man may linger a long time in a helpless state, and chronic diseases and some cancers run through more time than a year. The Act concurs with the principles of Christian civilization, and is remedial of a common want and necessity — attention and services during last sickness. We must therefore construe it liberally, and let it endure to its proper end, the full relief of the sick and the infirm. The Court and jury were the proper judges, in the particular instance; and they appear to have assessed the amount of the plaintiff’s account with justice and discretion.

The motion for a new trial is therefore refused.

Butler and Evans, Js., dissented.  