Neudecker v. Leister

Urner, J., delivered the opinion of the Court. The appellant, Cora Y. Reudecker, brought this suit against the appellee, as the executrix of the will of Sarah A. Roll, deceased, to recover $407.10 for board and lodging furnished, and personal services rendered, to the decedent in her lifetime', during .the period of three months in the year 1912, and about one year and ten months from September 7, 1913, to July 26, 1915, at the rate of eighteen dollars per month. It is stated in the declaration, and in the open account therewith filed, that the accommodations and attentions sued for were provided in pursuance of an agreement that the plaintiff should be compensated therefor by the defendant’s testatrix in her will, but that she died without making such compensation by will or in any other manner. The case was' withdrawn from the jury on the ground that there was no legally sufficient evidence to sus<tain the plaintiff’s claim.

The only exception in the Record questions the propriety of that ruling. There is no dispute in the evidence that the board, lodging and services for which the plaintiff is suing were actually furnished and rendered to the extent and value claimed, but recovery was successfully resisted on the theory that these provisions for the support and comfort of the decedent were in fact nlade gratuitously, and that her failure to make an expected disposition in the plaintiff’s favor by will is not an ⁵⁷³ adequate legal basis upon which the present suit may be maintained. The Record shows that the decedent, Sarah A. Roll, was a widow without children, and- had four nieces, one of whom was Mrs. Reudecker, the plaintiff, and there is evidence to the effect that prior to the first of the periods to which the account in suit refers she told the plaintiff that she would divide her estate among the nieces if they would keep her during her life. Thor© were subsequent statements, by Mrs. Roll to the plaintiff that she could not pay at the time for what was being done for her but that she would give the plaintiff something by her will.

The other nieces were Mrs. Leister, Mrs. Easier and Mrs. Close.. Each of the four nieces was substantially remembered by a will executed by Mrs. Roll in 1911. From that time until her death, in Rovomber, 1915, she lived alternately with Mrs. Basler, Mrs. Reudecker and Mrs:. Leister.

In 1913 she made a will giving her estate to those three nieces, hut by her last will dated July 31, 193 5, she gave: her property wholly to Mrs. Leister, with whom she was then living. The proof is that during the periods of Mrs. Roll’s sojourn in Mrs. Reudecker’s home she was “treated as one of the family,” but she “never helped around the house or did any kind of work” except that “occasionally she might have made up her bed.” She was about eighty years of age when she went to the home of Mrs. Reudecker in 1912. While she remained there, during both of the periods mentioned, she received, in addition to her board and lodging, the benefit of the services of Mrs. Reudecker and other members of tbe family in doing her laundry work, sweeping her room, waiting on her and giving her whatever attention she needed. It does not seem, to> us that the services thus rendered, should be regarded as presumptively gratuitous.

The kinship of Mrs. Reudecker to her aunt was not sufficiently close to create of itself such a presumption. This was expressly decided in the case of Bouic v. Maught, 76 Md. 440 , where ⁵⁷⁴ a niece was suing for personal care and attention bestowed upon her invalid aunt, who was1 a boarder in the home of the plaintiff’s mother, and where it was said, in the opinion by Chief Judge Ax-vet: “It isi not to be inferred, simply from the relation that existed in this case between the parties, that the services were intended to be gratuitous, and were rendered with a view to no compensation.” It is true that even in the case of a more remote kinship, or as between persons not related in blood or by marriage, the inference that particular services were intended to be gratuitous may arise when the domestic associations of the parties; involve the usual incidents of family relationship. Pearre v. Smith, 110 Md. 531 ; Harper v. Davis, 115 Md. 349 ; Elosser v. Fletcher, 126 Md. 244 . But, except where the natural or actual relations of persons as members of