Walls' Appeal ( 1886 )

Mr. Justice Green

delivered the opinion of the Court, February 15th, 1886.

The claim of the appellant is based only upon the footing of an express contract. As she was the niece by marriage of the decedent, and was taken into his family when only six years of age, and was fed, clothed and maintained by the decedent as one of his family during all the period of her stay with him, nothing less than an express contract would be sufficient to sustain a recovery. The only direct evidence of such a contract is found in the testimony of Mrs. Dukes. The appellant being about the age of fourteen years, a conversation took piace between her mother and her uncle, the dece* dent, in the presence of the appellant, in the following circumstances, as testified by the witness: “ Her (the appellant’s) aunt had been beating her, and her mother came in and she said she would take her away ; that she would not have her daughter treated in that way; that she had been made a slave of all her life ever since she was there. Her uncle stepped up and said, if she would let her stay that things would be different; that she should have a good home as long as he liveck and at his death he would provide for her; that she should never want as long as she lived. Annie’s mother agreed to let her stay, and she staid until she was married. After I left Annie had to do the housework, and sew too......This conversation occurred about twenty years ago.” The literal meaning of these words leaves the contract upon which the claim is founded in a state of entire uncertainty in its most material part, and that is as to the length or continuance of the service which the appellant was to render. How long was she to stay? Was it one month, one year, until her marriage, or during the life of the uncle ? It is simply impossible to answer this question. A species of compensation is alleged to have been fixed, to wit, a good home as long as he lived, and a provision for her at his death, so that she should never want as long as she lived. Supposing this rather indefinite compensation to be sufficiently certain to abide the test of the decisions, what was to be done by the appellant in order to entitle her to it ? Admittedly, she was to render service, but how much service? Just here is the difficulty. The contract itself ought either to specify the amount of service to be rendered, or at least ought to afford the means of ascertaining or defining with some sort of precision the consideration which was to be given for the compensation claimed. If this is not done the law has no standard by which to measure the performance by the claimant of her part of the contract. Where such is the ease the alleged contract is hopelessly uncertain and cannot be enforced.

While the literal meaning of the words of the coutract as testified to by Mrs. Dukes, leaves it in such a condition of uncertainty, an implied meaning might be reasoned out that the appellant was to stay with the decedent as long as he lived, because, according to the witness, he said she should have a good home as long as he lived, and at his death he would provide for her. But if such was the meaning of the parties a still more serious difficulty arises from the fact that the appellant never performed her part of such a contract. When she was about twenty-three years of age she married and left the decedent’s family and lived with her husband. This was about ten years before the death of the testator. She rendered some service at irregular intervals afterwards, but of 'course this could not come within a contract for continuous service. So much of the claim as would be due upon a quantum meruit, before the appellant’s marriage, is barred by the statute of limitations, and thus the claim is left without any adequate support of testimony to sustain it. There was other testimony of declarations and admissions by the (Jecedent, but none of it relieves the case of the radical difficulties we have indicated. It was of the usual kind always found in such cases. None of the declarations were made to the appellant or in her presence. Some were expressions of gratitude for the services of the appellant, and some were expressions of an intent to provide for her at testator’s death. In so far as they related to services rendered in the past, they could not constitute a contract relation, they were at most but the assertions of an intent to make a testamentary provision, and this, of course, depended upon the mere will of the testator. He did make some small provision for the appellant in that way, and so far as that circumstance is an indication of the testator’s intent in all he had said, it disproves instead of proving, the theory that he supposed he was under a contract obligation.

The case comes almost literally within the decision of this court in Pollock v. Ray, 4 Norris, 428. Thus on p. 432 we said: “If the declarations had been to the effect that if the plaintiff would remain with him until his death he would then do well by her, or pay her wages, there would be some plausibility in the contention that there was a mutual contract ; she to serve him until his death, and he either to provide for her by will or pay her wages. It might possibly have been sustained under the case of Thompson v. Stevens, 21 P. F. S., 161. This was not, however, pretended to have been the contract. Had she remained until his death it might perhaps have been implied. But in point of fact she left his service ten years before his death. There was no engagement on her part to remain a day. She might have left immediately, and her ease would have stood as strong on the evidence as it is now.”

In Graham v. Graham’s Ex’rs, 10 Cas., 475, we held that the parol contract of a decedent to give the plaintiff a certain portion of his estate in consideration of services rendered, even if capable of being enforced, can onljr be when clearly proved by direct and positive evidence, and where its terms are definite and certain. The testimony in that case was quite as express and positive as in this. As to the length of service it was very definite, but as to the compensation it was indefinite and uncertain, and for that reason chiefly it was held to be insufficient to sustain the claim.

Claims of this nature against dead men’s estates, resting entirely in parol, based largely upon loose declarations, presented generally years after the services in question were rendered, and when the lips of the party principally interested are closed in death, require the closest and most careful scrutiny to prevent injustice being done. We cannot too often repeat the cautions we have so frequently uttered upon this subject, and we feel that,, the present occasion is one which demands both their repetition and their application.

The decree of the court below is affirmed, and the appeal is dismissed at the cost of the appellant.