Patterson v. Carter , 147 Ala. 522 ( 1906 )

ANDERSON, J.

-The bill avers facts from which it can be concluded, and which averments are supported by the proof, that the judgment was obtained against the administrator, either by collusion with him, or, at least, from a failure on his part to use proper diligence to defend the suit; and, such being the case, a court of chancery will relieve the heirs, unless it was for a valid and subsisting claim. The evidence shows that the plaintiff to the judgment, Celia Patterson, was reared by the intestate and continued and lived with her until her death, and practically occupied the same relationship with the decedent, the latter years of her life, that she did for a number of years previous to her death. She performed certain services in and about the place and for the deceased, and in return received a maintenance and support at what was to all intents and purposes their.common home. She was practically a part of the family of Mrs. Patterson, who stood in the relation of a parent, and the presumption is that no payment is expected for services rendered or support furnished by the one to the other. “This presumption is not, however, conclusive, and may be overcome by proof either of an express agreement .to pay or of such facts and circumstances as show satisfactorily that both parties at the time expected payment to be made. Whenever, therefore, compensation is claimed in any case by either parent or child against the other for services rendered, or the like, the question whether the claim should be allowed must be determined from the particular circumstances of the case. There can be no fixed rule governing all cases alike. In tlie absence of any direct proof of an express contract, the question which must be determined is whether it can be reasonably' inferred that pecuniary compensation was in the view of the parties at the time when the services were rendered or the support was furnished; and the solution of this question depends upon a consideration of all the circumstances of the case.”' — 21 Am. & Eng. Ency. Law, 1061. The only evidence to show that it was within the contemplation of the parties that Celia Patterson was to receive compensation for her services was her own testimony, which was clearly prohibited by section 1791 of the code of 1896, and which should harm been excluded. With this evidence excluded there is none remaining to support her claim. There was some proof as to what Mrs. Patterson said she wished Celia to have after her death, but which, instead of evidencing a subsisting liability, tended to indicate that, as her attentions to her were gratuitous, she desired to make some provision for her after her death, and she did not recognize that Celia Patterson had a charge against her estate for services. Nor does it appear from the evidence that it was within the.mind or contemplation of the parties that any relationship existed the last few years different from those under which they lived so many years previous.

The chancellor erred in refusing complainant relief, and the decree is here reversed, and one here entered annulling and vacating the judgment a-nd revoking the letters of administration.

Reversed and rendered.

Haralson, Dowdell, and Denson, JJ., concur.