Wood v. James

Estates of Deceased Persons—Dejected Claims of Daughter—Services as Nurse—Pleading—Uncertainty—Construction—Admission—Finding—Waiver of Variance.—Where a rejected claim of a daughter against the estate of her deceased mother was “for services as nurse for 204 days,” between certain dates, “at $2.50 per day, $510,” and the complaint thereon alleged services between said dates “as nurse to Mary J. James, at her request and for her use and benefit, performing at such time and times in said capacity of a nurse all the duties of a nurse, including the cooking, housekeeping, laundering, and earing for the said Mary J. James, during her last illness, which services were and are reasonably worth the sum of $2.50 per day,” it is held that the duties of a nurse do not include the particular services specified, but that, in the absence of a demurrer for uncertainty, and in view of the admission of defendant and the finding of the court that her services as a nurse were worth $2.50 per day, during the time claimed, the complaint may be construed as so asserting, and defendant has no cause to complain that there is a variance between the claim filed and the complaint.

Id.—Compensation fob Services of Child—Kule and Exception— Contract for Services.—Though, as a general rule, a child who lives with a parent is not entitled to compensation for services rendered to the parent, even if an adult, yet the parent may contract to pay for such services, especially when the parent and child do not live together.

Id.—Support of Finding as to Express Contract.—A finding as to an express contract of the. sick mother, in this ease, to pay her daughter for her services as nurse, is sufficiently supported by evidence that when the mother became afflicted with paralysis she requested her neighbor to call a doctor and a nurse, and the daughter, who lived in another county, was sent for, as a nurse, and after she came the mother told the neighbor to request her to remain and she would pay her for her services, and she remained and served as a nurse until her mother’s death.

Id.—Direct Contract by Daughter With Mother Ingapable of Proof. It is no objection to such finding that the evidence shows no direct contract between the daughter and her mother, as no such evidence is admissible under section 1880 of the Code of Civil Procedure, which closes the lips of the plaintiff, and does not permit her to testify thereto.

Id.—Absence of Suspicious Circumstances as to Claim for Services —Presumption.—It is held that no suspicion can arise as to the claim of the daughter for her services as a nurse to her mother under the facts appearing; and it must be presumed that any unknown circumstances, not disclosed by the record, were such as supported the fairness of the contract, and repelled any suspicion of its not having been made in good faith.