Beaver's Estate

Opinion by

Porter, J.,

Daniel Beaver was an old man, a childless widower, lining by himself, when seized by the illness which subsequently terminated in his death. The physician who attended him found him to be in bad condition and filthy and told him, in the presence of a friend, that he must be removed to some other place. The decedent expressed a desire to be taken to the home of Howard W. Baum, which was near, and his friend so informed Mr. and Mrs. Baum, who consented to receive him into their home. The deceased was then taken to the home of Mr. and Mrs. Baum and there he remained during about twenty-eight weeks, when he died. The administrators of his estate having filed their account, an auditor whs appointed to distribute the balance shown by the account to be in their hands and Howard W- Baum presented a claim for boarding and lodging the deceased, while his wife, Maggie L. Baum, presented a claim for nursing the deceased, during his last illness. Much testimony was taken by the auditor with regard to these claims and after consideration thereof he found that Howard W. Baum was entitled to $6 per week for boarding and lodging the deceased, which amounted to $162.85, and that Maggie L. Baum should be compensated for nursing the deceased during his last illness, at the rate of $10 per week, which amounted to $271.43. The next of kin, these appellants, filed exceptions to the allowance of these claims by the report of the auditor, which exceptions the court below overruled, and from that decree we have this appeal.

There was no relationship of either affinity or consanguinity between the decedent and the appellees, nor had their previous relations and course of dealing been such as to impose upon the latter any duty to receive into their home and take care of the former. There was no contract' made between them nor was there anything in the circumstances from which it could be inferred that when they received him into their home they undertook to provide for and take care of him gratuitously. These facts were found by the auditor upon sufficient evidence and concerning them there is no reasonable ground for dispute. The performance and receipt of services, in such circumstances, raises an implied promise by him who receives to compensate him who performs: Smith v. Milligan, 43 Pa. 107; Curry v. Curry, 114 Pa. 367; Griffith’s Est., 147 Pa. 274. The appellants contend, however, that there is a presumption that the services which the appellees rendered to the decedent were compensated by periodical payments and that that presumption must prevail. There was no contract between the parties nor any course of dealing from which it could be inferred that the appellees were to be paid for the services, which they rendered to this old man in a dying condition, at any particular time, or at any designated rate. The services performed by Mrs. Baum were not those of an ordinary house servant, and therefore, she did not come within the rule that such services are presumed to be paid for at fixed periods: Ranninger’s App., 118 Pa. 20; Lewis’s Est., 156 Pa. 337. If the testimony of James H. Walter, an apparently disinterested witness, relating to a conversation which he had with the decedent a few hours before the death of the latter, was to be believed, it was sufficient foundation for a finding that the appellees had not been paid for their services, even if the circumstances had been such as to give rise to a prima facie presumption that they had been paid for at fixed periods. The complaint that the auditor opened the case to hear additional testimony after final argument of counsel, and before his report was prepared, is without merit, the matter was within the sound discretion of the auditor, which was properly exercised: Rhinesmith’s Case, 25 Pa. Superior Ct. 300. The specifications of error are all overruled.

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