Bixler v. Sellman

Fowler, J., delivered the opinion of the Court. The motion to dismiss the appeal in this case must be overruled. It is apparent from the affidavit of the clerk of the Circuit Court for Carroll County, which has been filed in this Court, that the appellants were in no manner responsible for the delay in transmitting the transcript of the record. The question involved in this case has been much considered in many of the Courts, both in England and America, and the general rule as recently adopted by ⁴⁹⁶ this Court in Bantz, Ex’r vs. Bantz, et al., 52 Md., 693 , &c., would seem to be not only reasonable in itself, but is supported by the great weight of authority.

As expressed in the case just cited, that rule is as follows: ^‘In order to justify a claim for services being allowed against a decedent, there must have been a design, at the time of the rendition, to- charge, and an expectation on the part of the recipient to pay for the services. The services must have been of such character and rendered under such circumstances, as to fairly imply an understanding of payment and a promise to pay. There must have been an express or implied understanding between the parties that a charge for the services was to be made and to be met by payment.” The rule as here laid down applies only when a claim of this character is made by a member of the family of the decedent, for, of course, it must be conceded that generally the law implies a promise to pay for services rendered and accepted; but a well recognized distinction exists where the service is rendered by a member of the family of the person served. In the latter case a presumption of law arises that such services are gratuitous. 17 Am. & Eng.

Ency. of Law, 336; Bantz, Ex’r vs. Bantz, et al., supra. And as we said in the case last cited, the services must have been rendered under such circumstances as to imply an understanding of payment and a promise to pay. A mere expectation of one that he will be paid for services and of the other to pay therefor, never expressed by either to the other, will not constitute an express contract; but if proven by competent testimony such expectations may. sometimes give color to circumstances tending