Avitt v. Smith

• Decision Date: 20 April 1897
• Citation: 27 S.E. 91,120 N.C. 392
• Court: North Carolina Supreme Court
• Parties: AVITT v. SMITH.

27 S.E. 91

120 N.C. 392

AVITT

v.SMITH.

Supreme Court of North Carolina.

April 20, 1897.

Claim against Decedent's Estate — Services Rendered Parent.

In an action against the administrator of plaintiff's mother for services rendered her, plaintiff testified that he lived with her all his life, and for 24 years ran her farm, attending to all her business; that she, one sister, and himself constituted the family; that he "supported them, and they supported" him; and that "we all consumed together what we made on the place." A witness testified he heard the mother say that she wanted plaintiff to have 60 acres of land for his services. Held, that a nonsuit was proper.

Appeal from superior court, Stanly county; Norwood, Judge.

Action by R. S. Avitt against James W. Smith, administrator of the estate of A. R. T. Avitt, deceased. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Bennett & Bennett, for appellant.

Austin & Price, for appellee.

FAIRCLOTH, C. J. The plaintiff brought this action to recover for services rendered bis mother, the intestate of defendant. The plaintiff testified that he lived with his mother all his life, and that from 1871 to 1895 he ran her farm, and rendered her all the service he could, and protected her, and in a general way attended to all her business. He, his mother, and one sister composed the family, and they all worked. He says: "I supported them, and they supported me. We all consumed together what we made on the place." Another witness said he heard the mother say, in the presence of the plaintiff, that "she wanted the plaintiff to have 60 acres of her land in consideration for his services in taking care of her." His honor's opinion being against the plaintiff, he submitted to a nonsuit, and appealed.

In ordinary dealings, the law implies a promise to pay for services rendered by one for another. This presumption may be rebutted by the relations of the parties, as father and child, stepfather and child, and grandfather and child, etc. In the absence of some contract, express or implied, showing an intention on the part of one to charge and the other to pay, the presumption is rebutted by the relationship. The law does not look favorably on those after-death charges, in the absence of some agreement by the parties before death. Hudson v. Lutz, 5 Jones (N. C.) 217. The old lady's remark about the 60 acres of land showed her kind disposition, but fails to furnish any evidence of a contract or promise to pay. There was...