In Re the Estate of Rohrer

MELVIN, J.

This is an appeal by the heirs at law of J. B. Rohrer, deceased, from an order settling the first account of R. I. Follmer, executor of the last will of said deceased. Two exceptions were made to the account, one based upon the alleged failure of the executor to include in the inventory certain real property of the value of eight thousand dollars and the other relating to an allowed claim for one thousand dollars paid by the executor to his wife for nursing Rohrer during his last illness, but as the first exception was evidently abandoned by' appellants we have only to consider that directed to the allowance of Mrs. Follmer’s claim.

The court, allowed the claim not for one thousand dollars but for six hundred dollars. No objection was made to the value of the services. Indeed, the testimony showed that for a period of nearly nineteen months before his death the sick man required almost the constant attention of his nurse. The contention of the appellant is that Mrs. Follmer, whose bus-

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band was a nephew of the deceased, never expected any compensation for her services and that as she and her husband were living at the home of Mr. Rohrer without cost to them, her care of the sick man was prompted by motives of generosity alone. The evidence of Mrs. Follmer which was uncontradicted shows, however, that she had been promised compensation for the care of her husband’s kinsman. She testified in part as follows: “No compensation was ever fixed for such services, and I never intended to charge him anything for such services, but he stated that I would be well paid for same. He at no time agreed to pay me any fixed sum for services rendered by me. I was prompted to perform such services out of kindness for Mr. Rohrer; I never kept any account whatever for such services. ... I expected for such services a legacy or other remembrance. Mr. Rohrer never paid me anything for my services and I never asked him for anything for such services, and I never expected any compensation for such services in his lifetime.” That an understanding between her and Mr. Rohrer existed with reference to her compensation, is borne out by the fact that by his will he left her a legacy of one thousand dollars. This was void because she was a subscribing witness to the will. She testified that she never intended to file a claim against the estate of Rohrer but that she determined to do so when her attorney told her that the legacy was void. Appellants’ attorneys argue that Mrs. Follmer cannot offer a claim founded on an implied contract, simply because an expected legacy failed, because the contract must have contemplated payment for the services to be rendered at the time the agreement was made. In this behalf they cite