#### J. G. LANDRETH and Wife, CARRIE LANDRETH, v. FRED MORRIS, Administrator of the Estate of GEORGE W. LANDRETH.

(Filed 4 January, 1939.)

1. Evidence § 46: Executors and Administrators § 15d—

In an action to recover upon quantum meruit for personal services rendered deceased, it is competent for witnesses to testify from their knowledge of living conditions and observations of services of the character alleged to have been rendered deceased, as to the value of such services'in the community.

2. Executors and Administrators § 15d—

The presumption that personal services rendered by a child to his parent are gratuitous arises from the relationship in a typical unbroken family, or one which has been reunited in the same relationships, and the presumption is necessarily affected by evidence that the respective moral and legal obligations of its members are different from that which gives rise to the rule.

3. Same — Evidence held insufficient to support presumption that services rendered by child to parent were gratuitous as matter of law.

The evidence, considered in the light most favorable to plaintiffs, tended to show that the male plaintiff had attained his majority, married, and moved away from the home place, that his father, the intestate, had sold practically all his personal effects and gone to live with a daughter and son-in-law; that thereafter plaintiffs moved back to the home place, bringing their furniture, stock, and farm implements; that some two weeks thereafter intestate moved back to the home place and lived with them the balance of his life;"that the male plaintiff paid rent to intestate for the land in much the same manner as he would to a stranger; that during the latter part of his life intestate was in very poor health, and that plaintiffs gave him the constant and onerous care and attention required by his condition. Held: The evidence does not justify the application of the presumption that the services were rendered' gratuitously as a matter of law, and the question was properly submitted to the jury.

*6204. Same—

The presumption that services rendered by a child to his parent are gratuitous does not apply to the relationship between a father-in-law and daughter-in-law.

Appeal by defendant from Sill, Special Judge, at May Term, 1938, of Foestth.

No error.

Tbe plaintiffs sued tbe defendant, administrator of tbe estate of George W. Landreth, to recover for services alleged to have been rendered tbe deceased Landreth by them during tbe last years of bis life. Tbe plaintiffs are tbe son and daughter-in-law of tbe intestate, Lan-dreth.

The evidence is to tbe effect that tbe plaintiffs were married in 1926, and bad been living away from tbe Landreth home place. That place bad been vacant for some time. Meanwhile, tbe father was living with a son-in-law, Frank' Taylor, at another place. Taylor bad been away from tbe George Landreth place for about three years before plaintiffs moved there.

Tbe plaintiff Landreth moved to bis father’s old place with bis wife and children in 1926; and in about two weeks thereafter tbe father moved in with them and lived there for about ten years, dying in tbe spring of 1931.

There were seven brothers and sisters besides plaintiff. None of them lived in tbe bouse with plaintiff and bis father during the last five years of tbe latter’s life, all living at a distance from eight to ten miles away, visiting him at infrequent intervals.

Tbe plaintiff and bis wife took care of tbe father, George Landreth, who, during tbe latter part of bis life, was in very poor health, much of tbe time bedridden. During tbe latter part of bis life be was unable to control bis bodily functions and bad to be cared for in much tbe same manner as an infant.

Mrs. Landreth testified that after their marriage she and her husband lived at her father’s place a while, and later at tbe Hester place. Mr. George W. Landreth was not living at bis home place when her bus-band and herself moved there in December, 1926, but did move there about two weeks afterwards; that she and her husband did farm work, raising tobacco, wheat, corn, vegetables of all kinds; cultivated sixty-three acres. In 1932, Mr. Landreth was taken sick and was under tbe care of a doctor. Erom 1936 until February, 1931, tbe intestate was practically helpless; during a large part of that time and prior thereto intestate was bedridden and required much attention.

Other witnesses testified to tbe bad health of tbe intestate and tbe necessity for special attention, and to tbe fact that be was unable to *621perform any work; and to bis physical condition, wbieb required constant attention to keep intestate, bis bed, and surroundings in a sanitary condition; and to tbe attention given by plaintiffs.

T. A. Martin testified that during tbe year 1934 be measured tbe tobacco crop about tbe first of August, 1934, and that tbe intestate told bim about tbe “terms that bim and Gurtbie (plaintiff) bad in regard to tbe tobacco crop. He said be got one-tbird of tbe tobacco.” He saw tbe deceased in 1934, 1935, and 1936, wben be measured tbe tobacco crop; that be beard this plaintiff say in tbe presence of tbe intestate that be (plaintiff) furnished tbe stock to cultivate tbe tobacco; that tbe customary allowance to a landowner in tbe cultivation of a crop in that community where be furnished only tbe land was one-tbird, and that tbe intestate, G. W. Landretb, told witness that be got one-tbird of tbe tobacco crop. Mr. George Landretb told witness that they “all ate tbe bread and tbe only part be taken was out of tbe tobacco.”

There was further evidence that tbe Landretb place was vacant for a while until Gurtbie Landretb, tbe plaintiff, moved there.

P. G. Landreth, a brother of intestate, testified that during tbe last three years of bis brother’s life bis condition was very bad; that be was unable to do anything, and was in bed practically all tbe time. During this time witness visited bis brother, found bis room kept “nice and clean and sanitary”; that bis brother said tbe kind of attention be was getting was good, extra good. The witness stated that decedent said to bim: “ 'I am not going to be here very much longer,’ and be says, ‘I am lots of trouble to Carrie and Gurthie, but,’ he says, ‘I can’t help it.’ He says, T haven’t got any will, I don’t believe in making a will, but,’ be says, ‘when I am dead and gone I hope tbe children will all get together and do what’s right for them, you understand, come to some agreement without going to tbe courts.’ He said, T hope it won’t go to tbe courts.’ He said, ‘I want them well paid, but,’ be said, ‘if it does go to tbe courthouse I am not worrying about that. I know 12 men will give them justice.’ ”

“During this conversation, Carrie came in there while we were talking, but I don’t know whether she paid any attention to it or not.”

There was other testimony as to the condition of the intestate, tbe service rendered bim by tbe plaintiffs, and tbe value thereof.

Tbe defendant offered testimony as to tbe financial condition of tbe intestate, amongst other things bis deposits at the bank. There is evidence to tbe effect that interests on these deposits were paid to Gurtbie Landretb, tbe plaintiff. Other witnesses for tbe defendant testified as to tbe condition of tbe intestate and tbe fact that bis health was varied, at times bad and at times better, and that there were times “wben be could get about and times probably be could not.”

*622One witness testified to having beard Gurthie speak about having quit paying rent, the last time in the spring after his father died. "Witness did not know whether or not he did pay rent for the last year to the administrator, but that plaintiff did say that he paid rent up to the time he spoke to him about it, had been paying rent out of the tobacco all the time, but not out of the grain.

There was further evidence to the effect that the intestate had sold all of his personal belongings escept some trunks and a “half bed,” bed covering, and a few other personal articles, upon moving away from the old place, and that these were moved into the old landreth home place already occupied by plaintiffs about two weeks after they got there.

Overruling the defendant’s motion for nonsuit, the trial judge submitted the evidence to the jury on appropriate issues, which were answered in favor of the plaintiffs; and from judgment upon the verdict of the jury, the defendant appealed.

Elledge & Wells for plaintiffs, appellees.

Ingle, Bucher & Ingle for defendant, appellant.

Sbawell, J.

Noting the exceptions to the evidence brought forward in the brief, we are of the opinion that the testimony of witnesses, with only the common experience derived from a familiarity with living conditions and observation of the services of the character alleged to have been performed for the intestate, was competent as to the value of those services in the community in which they lived. The defendant’s exception to admission of this evidence is without merit.

The defendant relies upon the evidence tending to show the existence of family unity and the relation of the plaintiffs to the intestate as rebutting the presumption of an implied promise to pay for the services rendered by plaintiffs, and replacing it with the presumption that the services were gratuitously rendered. Winkler v. Killian, 141 N. C., 575, 579, 54 S. E., 540.

In the cited case it is said, quoting Ruffin, J., in Williams v. Barnes, 14 N. C., 348: “It cannot be possible that the head of a harmonious household must drive each member off as he shall arrive at age, or be bound to pay him wages or for occasional services, unless he shows that it was agreed that he should not pay.”

The opinion quotes further, with approval, from Dodson v. McAdams, 96 N. C., 149, 154: “. . . 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 *623the 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.” Further analyzing Winkler v. Killian, supra, we find the following: “In Young v. Herman, 97 N. C., 280, it is held: £(1) When a child after arrival at full age continues to reside with and serve the parent, the presumption is that the service is gratuitous. (2) But this presumption may be rebutted by proof of facts and circumstances which show that such was not the intention of the parties, and raise a promise by the parent to pay as much as the labor of the child is reasonably worth.’ Again, in Callahan v. Wood, 118 N. C., 752, quoted in this case, we find: ‘We do not put our decision entirely on the kinship relation, hut also on the one-family relation established and maintained by the parties! ”

The presumption arising out of the family unity and the relation of the members of the family to each other must necessarily yield to evidence indicating that the modus vivendi of the family is different from that which gives rise to the rule. The presumption is affected by the family vicissitudes and those changes in the composition and relationships of the group which are apt to come when it contains adult members who have their own separate responsibilities, both moral and legal. The “unity” of which the presumption speaks means more than living in the same house and eating off the same table. It signifies that reciprocity of service which might be expected of a typical unbroken family, or one which has been reunited in the same relationships.

In the case at bar the evidence, taken in its most favorable light for the plaintiffs, shows that young Landreth, one of the plaintiffs, had attained the age of twenty-one years, married, and moved away, entirely breaking his connection with the family, and assuming other paramount duties and obligations to his own separately established family. The intestate had sold all of his personal effects except a “half bed,” some trunks, and a gun, and had gone to live with a son-in-law. Seven children lived at various distances, from eight to ten miles, and these visited him infrequently. Not a vestige of family organization remained. The plaintiff Gurthie Landreth and his wife moved to the old place, carrying their furniture, stock, and farm implements, under a rental agreement which intestate might have made with a stranger; and the evidence, although conflicting, will support the finding that the rents were paid up to the time of intestate’s death. The facts of this case are not consistent with the philosophy which is said in Winkler v. Killian, supra, to underlie the presumption of gratuitous service.

As to the feme plaintiff, the daughter-in-law, we note the rule that in this State the fact of “family unity,” of itself, is not sufficient to give rise to the presumption of gratuitous service; there must also be a cer*624tain relationship between the parties from which it may be supposed the services were referable to some moral or legal duty which the servitor recognizes as impelling. When the law goes outside the law for a rule of civil conduct based on those moral considerations which society imposes on its members as both commendable and compelling, it must be content with what it finds. It cannot be said that usage in this State recognizes the moral responsibility of a daughter-in-law, or a son-in-law, to such an extent as to raise a ju'esumption of gratuitous service arising out of that relation. The presumption is adopted in Callahan v. Wood, supra, repudiated in Dunn v. Currie, 141 N. C., 123, 53 S. E., 533; ignored in Henderson v. McLain, 146 N. C., 329, 59 S. E., 873; and denied in Nesbitt v. Donoho, 198 N. C., 147, 150 S. E., 875. In that state of the law we see no reason to apply to the feme plaintiff, by whom the major part of the service was rendered, a rule which smacks more of the story of Buth and Naomi than it does of the common law.

The presumption of gratuitous service is too precariously seated on the evidence in this case to justify its application as a matter of law. The circumstances under which the family relations were resumed, if at all, and what these relations were, and what significance might be attached to them, were matters for the jury.

We see no reason to disturb the verdict. Upon the record we find

No error.