Maker v. Maker

Barrows, J.

The reception.by the defendant’s intestate of a deed of real estate from his mother, the plaintiff, the consideration of which is therein declared to be the maintenance of the plaintiff and her husband during their natural lives, is sufficient proof of a promise on the part of the intestate to furnish that maintenance, which promise is binding upon him and his estate in the hands of his administrator. The nature of the consideration is such, that the formal receipt in the deed cannot be regarded as prima facie evidence of its payment. The testimony reported, shows that the son furnished the support while he lived and that after his death, the plaintiff, (her husband having deceased,) lived for more than a year with the son’s widow upon the property conveyed, and left there in the spring of 1877 to reside with her daughter, no letters of administration being gr&nted upon the son’s estate, until January, 1880. Under such circumstances, the reception other support in the family of the son’s widow up to the time of her removal to her daughter’s, would not constitute an election on the part of the plaintiff to have her maintenance there, which would be binding on her. The obligation to support the plaintiff, constituted a debt against the son’s estate, from which his widow might relieve it for the benefit of herself and her minor children, so long as she could make it agreeable to the plaintiff to live with her. But after the death of the son and while there was no legal, representative of his estate, the relation of the parties would not be changed by any such tacit acceptance of support as is here shown; and it was competent, within the well settled rule of construction of these contracts in this state, for the plaintiff to elect to receive her support at her daughter’s. Norton v. Webb, 36 Maine, 272. Even were it otherwise, the case furnishes sufficient evidence to justify the plaintiff in claiming-a breach of the contract, for want of that civil and decent attention to her comfort and feelings, which is included in every undertaking for such maintenance.

Due demand upon the administrator was alleged and admitted. If the action was maintainable, it was agreed by the parties that judgment should be entered for the plaintiff, for three hundred and fifty dollars damages.

Judgment for plaintiff accordingly.

AbpletoN, C. J., WaltoN, DaNfoeth, ViegiN and Petees, JJ., concurred.