Dodson v. McAdams

• Decision Date: 21 May 1887
• Court: North Carolina Supreme Court
• Parties: DODSON and others v. McADAMS, Ex'r.

96 N.C. 149

2 S.E. 453

60 Am.Rep. 408

DODSON and others

v.McADAMS, Ex'r.

Supreme Court of North Carolina.

May 21, 1887.

Appeal from superior court, Orange county.

Action to recover on an alleged contract between John Whitaker, the testator of defendant, and the feme plaintiff, that services rendered to the testator should be compensated in his last will and testament. Defendant denied any such contract, and alleged that feme plaintiff lived with testator as a member of his family, and only performed such services as were customary for a girl in her station in life; and, when married, the testator, who was her grandfather, provided more amply for her than he had done for his own daughters on like occasions. Verdict for plaintiff for $100 per annum for three years prior to her leaving the testator. Motion by defendant to set aside the verdict. Verdict reduced to $72 per annum. Motion to set aside refused, and judgment for plaintiff, from which the defendant appealed.

Graham & Ruffin and Batchelor & Devereux, for plaintiffs, respondents.

A. W. Graham and Battle & Mordecai, for defendant, appellant.

MERRIMON, J.

It seems to be settled law, certainly in this state, that if a grandfather receives his grandchild or grandchildren into his family, and treats them as members thereof,-as his own children,-he and they are in loco parentis et liberorum; and hence, if the grandchild, in such case, shall do labor for the grandfather, as a son or daughter does ordinarily as a member of the family of his or her father, in that case, in the absence of any agreement to the contrary, no presumption of a promise on the part of the grandfather to pay the grandchild for his labor arises. The presumption is to the contrary. The grandchild, as to his labor or services so rendered in such case, is on the same footing as a son or daughter. And this is so, after the grandchild attains his majority, if the same family relation continues. This rule is founded, in large measure, upon the supposition that the father clothes, feeds, educates, and supports the child, and that the latter labors and does appropriate service for the father and his family in return for such fatherly care and domestic comfort and advantage. The family relation, and the nature of the service, rebut the ordinary presumption that arises when labor is done for a party at his request, express or implied, of a promise on his part to pay for it.

Applying this rule, this court held in Hussey v. Roundtree, Busb. 111, that though a step-father is not bound to support his step-children, nor they to render him any service, yet if he support them, or they labor for him, in the absence of an express agreement, they will be deemed to have dealt with each other as parent and child, and not as strangers. And in the subsequent case of Hudson v. Lutz, 5 Jones, (N. C.) 217, Chief Justice PEARSON said, citing the above-cited case with strong approval, that “the same principle applies to a grandfather and child when the one assumes to act in loco parentis. In our case [that then under consideration] this relation existed to all intents and purposes. The circumstance that the plaintiff was illegitimate, has no bearing on the application of the principle. The ‘old man,’ in the fullness of his affection, forgave the transgression of his daughter, and allowed her and her child ‘to live with him as members of his family up to his death’. The relation of the parties rebuts the presumption of a special contract, and puts the idea that he was to be paid for furnishing a home, or they were to have ‘a price’ for work and labor done, out of the question. In the language of RUFFIN, J., ‘such claims ought to be frowned on by the courts and juries. To sustain them tends to change the character of our people, cool domestic regard, and, in the place of confidence, sow jealousies in families.”’ In such case, the ordinary rule applicable to parent and child will be applied, and hence it is not presumed that compensation will be paid, on the part of the grandchild, for board and clothing, nor on the part of the grandfather for labor and services. Hussey v. Roundtree, supra; Schouler, Dom. Rel. § 273. But the presumption...