Opinion
3 Div. 640.
January 24, 1924.
Appeal from Circuit Court, Autauga County; G. F. Smoot, Judge.
Ballard Jones, of Prattville, for appellant.
The presumption of gratuitous services is overcome by the assertion of the decedent that she wished her daughter-in-law compensated therefor. Lowery v. Pritchett, 204 Ala. 328, 85 So. 531; Patterson v. Carter, 147 Ala. 522, 41 So. 133; 8 A. E. Ency. 1023.
Gipson Booth, of Prattville, and F. Loyd Tate, of Wetumpka, for appellees.
The fact that they lived as one family, it is conclusively presumed that the services rendered the decedent were gratuitous, being by a daughter-in-law to the mother of her husband. There is no implied contract to pay for such services. Hardiman v. Crick, 131 Ky. 358, 115 S.W. 236, 133 Am. St. Rep. 250; Lowery v. Pritchett, 204 Ala. 328, 85 So. 531; 22 C. J. 156.
It has been settled by this court that for articles furnished or services rendered by parent to child or child to parent, or those occupying such a relationship, the presumption arises that the services are gratuitous; but this presumption may be rebutted by proof of an express contract, or a contract implied in fact — that is, established by facts and circumstances which show that at the time the services were rendered both parties contemplated or intended a pecuniary compensation therefor. Lowery v. Pritchett, 204 Ala. 328, 85 So. 531. We think that the trial court properly held that the evidence failed to establish an express contract between the deceased and her daughter-in-law for compensation for what service she may have rendered the former, or afforded a reasonable inference that both parties contemplated or intended a pecuniary compensation for same. True, one witness testified that the deceased said her daughter-in-law was good to her "and she wanted to pay her for all she did for her," but this witness also stated that her mind was bad at the time. Indeed, the appellant, in an effort to magnify the need and value of the services rendered by his wife to his mother, practically succeeded in showing that she was mentally incapable of making a binding contract.
The trial court did not err in disallowing the claim in question and the decree of the circuit court is affirmed.
Affirmed.
SAYRE, GARDNER, and MILLER, JJ., concur.