Conway v. Conway

113 S.W. 94, 130 Ky. 218, 1908 Ky. LEXIS 256

• Court: Court of Appeals of Kentucky
• Decided: November 5, 1908
• Status: Published

Opinion

Opinion of the Court by

Wm. Rogers Clay, Commissioner —

Affirming.

Appellants, Henry Conway and Johnson Conway, seek in this action to recover for alleged services rendered their mother in nursing and taking care of her for a period of several months prior to her death. Their claims were first filed with the master commissioner in a suit brought by them and the administrator of their mother’s estate for a settlement thereof. The commissioner reported in favor of the claims. Appellees, Fannie Perrine and Ben Conway, filed exceptions to this report. Thereupon counsel for appellants moved for a trial suit out of chancery. This was granted. Upon the conclusion of the testimony for appellants, the court gave a peremptory instruction for appellees.

The evidence in the case shows that the appellants, Henry'and Johnson Conway, resided with their mothr er for a period of about 2% years prior to her death. During that time their mother was frequently confined to bed, and needed constant attention. This attention was given by appellants. Indeed, it seems that they did most of the work about the house, such as cooking, washing, etc. They also managed the place upon which they lived. Two or three witnesses testified that the mother of appellants said she wanted them paid out of the money she had left. She also sppke of having a written contract drawn up. One of the witnesses testified that she said she wanted all her children who waited on her to have something extra. There can be no doubt that appellants performed valuable and efficient services in nursing and taking care of their mother. Now and then a considerable portion of their time was taken up by the attention which she demanded; but there is absolutely nothing in the record to show that any contract was made between appellants and their mother that they should be paid for their services. Even the expressions which she is said to have used to others were not made in appellants’ presence. In a long line of decisions this court has held that, where the relationship of the parties was sufficient to raise the presumption that they lived together as a matter of mutual convenience, the law will not imply a promise to pay for the services so rendered. To establish a contract for such compensation requires stricter proof than to establish an ordinary contract. There is a natural obligation owing from a son to an invalid mother. Filial duty, to say nothing of love and affection, should prompt him to do everything in his power for her comfort and welfare. Where he afterwards makes a claim against his mother’s estate for such services, he should be entitled to recover only where there is proof of an actual contract that he should be paid. The expressions alleged to have been used by Mrs. Conway were not sufficient to establish such a. contract. Foley v. Dillon, etc., 105 S. W. 461, 32 Ky. Law Rep. 222; Wallace v. Denny’s Admr., 90 S. W. 1046, 28 Ky. Law Rep. 978; Reynold’s Admr. v. Reynolds, 92 Ky. 556, 18 S. W. 517, 13 Ky. Law Rep. 793.

Judgment affirmed.