
    Walters, Administrator, v. Heidy.
    
      Action will lie on agreement during life — To compensate by will for services rendered — Statute of limitations begins to run— Upon appointment of administrator.
    
    W. agreed with H. that if he would render her certain services she would, in compensation for such services, make a will giving him all the property she owned at her death. H. performed services under the agreement. W. died intestate. Held:
    
    1. H. can maintain an action to recover the value of the services so rendered.
    2. The statute of limitations begins to run against such action at the appointment of an administrator of W.’s estate.
    (Decided April 7, 1913.)
    Error: Court of Appeals for Carroll county.
    Metcalfe, J.; Norris and Pollock, JJ., concurring.
   Defendant in error, John D. Heidy, was plaintiff below. In the second amended petition filed in the case it is averred in substance, that in February, 1890, he entered into a verbal agreement with Nancy Heidy whereby he agreed to live with her upon her farm, known as the Tom Neely farm, as long as she desired him to do so, and that in compensation for his services to be rendered her in that behalf she agreed to make a will and give to him all the property she was the owner of at the time of her death; that in pursuance of that agreement he did move onto said farm and for a period of about two years gave his work and labor to the said Nancy Heidy, and performed services which he claims were of the value of a thousand dollars. In the meantime Nancy Heidy married Lewis Walters, plaintiff in error in this case, and some time after her marriage with Walters, Heidy moved away from the farm. Nancy Walters died in 1910, and after the appointment of an administrator Heidy brought his action to recover the value of the services which he claims to have rendered under his agreement with her. Upon the trial of the case Heidy recovered judgment. A number of questions are suggested, but we think the only 'questions of importance are: First, whether the action can be maintained, and if so whether it is barred by the statute of limitations.

That the agreement of Mrs. Walters to compensate Heidy for his work by will was within the statute of frauds seems clear, and that no action can be maintained upon the contract for damages or for a specific performance thereof seems equally clear. Austin v. Davis, 128 Ind. 472, 12 L. R. A., 120; DeMoss v. Robinson, 46 Mich., 62; Wallace v. Long, 105 Ind., 522, 55 Am. Rep., 222; Pond v. Sheean et al., 132 Ill., 312, 8 L. R. A., 414. But if no action can be maintained upon the contract does it follow that where services are rendered in pursuance of a mutual understanding between the parties that compensation shall be made therefor by will, and the party receiving the services dies without making the expected compensation, the party rendering the services may not recover their value from the estate of the deceased? Without entering into a discussion of this ques-non we think the right to recover in such case is sustained by the following authorities: Robinson v. Raynor, 28 N. Y., 494; Martin v. Wright’s Admrs., 13 Wend., 460, 28 Am. Dec., 468; Parsell v. Stryker, 41 N. Y., 480; Jenkins v. Stetson, 9 Allen, 128; Wellington v. Apthorp, 145 Mass., 69; Cariness v. Rushton, 101 Ind., 500, 51 Am. Rep., 759.

It is urged that the statute of limitations began to run at the time Heidy ceased to labor on the farm, and hence that his cause of action is barred. Upon the question of the statute of limitations the trial judge charged the jury as follows:

“If, upon consideration of all the evidence adduced on the trial, you find that said agreement between plaintiff and decedent as claimed by plaintiff was in fact made, that said plaintiff was to be compensated for said alleged services rendered, and means of support furnished, if any, and that he was not to receive such compensation until the death of Nancy J. Walters, then in such event I say to you as matter of law that his cause of action therefor would not arise and would not accrue to him until the date of said Nancy J. Walters’ death, which is admitted to be May 19, 1910, and in such event, plaintiff’s cause of action would not be barred by the statute of limitations.”

The evidence in this case tends to show that the services which Heidy was to render for Mrs. Walters were to be paid for by a provision in her will at her death. The manner in which they were to be paid is a matter of indifference. The question is, Was the compensation to be made at

Mr. W. L. Handley, for plaintiff in error.

Mr. I. H. Blythe, for defendant in error.

her death? If Heidy was no.t to be paid until that time how then could a cause of action arise before her death? It is urged that the question is not settled by our own supreme court, but in the case of Marsh, Admr., v. Clark, 11 O. D., 564, it is held that, where an uncle agreed to compensate his nephew by will for services, the statute of limitations did not begin to run until the death of the uncle. In Hoiles v. Riddle, 74 Ohio St., 173, the holding is to the effect that in an action on a contract not in writing which became due by the decease of the debtor the cause of action does not accrue until the appointment of an executor or administrator. We do not think that the fact that the contract in this case could not be enforced specifically as a contract makes any difference in the application of the principle announced in Holies v. Riddle, and that the same rule will apply in this case; consequently there was no prejudicial error in the charge as given. And as the death of Mrs. Walters and the appointment of the administrator occurred within six years prior to the commencement of the suit the statement in the charge that the statute began to run at the death of Mrs. Walters is immaterial.

Judgment affirmed.  