The opinion of the court was delivered by
Veazey, J.
Exceptions were taken to the judgment rendered upon the auditor’s report, in which the facts are concisely stated. The plaintiff was the mother of Lura E. Hatch, deceased, and claims to recover the items of her account in controversy on the ground of a contract between the mother and daughter while the latter was a minor of sixteen years of age, and a ratification of the same after she became of full age. The first item, including interest to September 1, 1886, was $720.20, for money which the plaintiff paid for school expenses of Lura while attending academies.
We think the report shows a distinct agreement on the part of Lura to repay her mother for these expenses. Upon the facts reported the agreement was a natural one to be made, and was in its nature beneficial to the minor. The mother clearly could not afford to give her daughter the higher education which she desired. The latter had the means to be devoted to such use by the devise to her by her father, but not in ready money. The finding of the auditor is incapable of a fair construction other than of an agreement as above stated, when taken in connection with the circumstances existing when the arrangement was made.
The defendant relies mainly upon the claim that this contract was not ratified after Lura arrived at her majority. The [170]*170finding of the auditor is this: “After Lura became of age, and while still attending the seminary at Montpelier, she reiterated to her mother her desire to go to school there and her willingness to pay the expenses incident thereto from her own share, and referred approvingly to her former promise to that effect during her minority. She told her mother she wished this arrangement to continue as it had been before she became of age.” There is no question but that the contract, by which a debt is incurred by an infant, may be ratified by an express promise to pay the debt, made by the infant, when he becomes of age, deliberately and with knowledge that he is not liable by law. To this extent the cases agree. Beyond this they are not entirely harmonious, at least in the enunciation of what is required to constitute ratification. As illustrations, see Smith v. Mayo, 9 Mass. 62, and Whitney v. Dutch, 14 Mass. 457.
There are many .cases which hold that although an express ratification is necessary, yet it is not required to be in the form of an express new promise. Tibbitts v. Gerrish, 5 Foster (N. H.), 41, and Harris v. Wall, 1 Exch. 122, are examples. Acts and declarations of one after attaining majority, in favor of his contract, may be of a character to constitute as perfect evidence of a ratification as an express and unequivocal promise. Mere acknowledgment of the contract, or partial payment, will not alone be sufficient. There must either be an express promise to pay, or such a direct confirmation as'expressly ratifies the contract, although it be not in the language of a formal promise. Wilcox v. Roath, 12 Conn. 551; Gray v. Ballon, 4 Wend. 403; Whitney v. Dutch, supra. The cases in Vermont have not recognized the necessity of an express promise in terms in order to constitute ratification of an obligation incurred during infancy. Where the declarations or acts of the individual after becoming of age fairly and justly lead to the inference that he intended to and did recognize and adopt as binding an agreement executory on his part made during [171]*171infancy, and intended to pay the debt; then incurred, we tbink it is sufficient to constitute ratification, provided the declarations were freely and understanding^ made, or the acts in like manner performed, and with knowledge that he was not legally liable. This proposition is clearly within the scope of decision in a long line of approved authorities, cited in Tyler on Infancy and Coverture, 2d ed. chap. VI., and 1 Am. Lead. Cases, p. 250.
The Vermont cases plainly warrant us in holding that the above conditions are sufficient. In Bigelow v. Kinney, 3 Vt. on p. 353, Prentiss, Ch. J., says : “ Though it is laid down that a bare acknowledgment or recognition of the contract of an infant, after he comes of age, without an express promise, will not, where the contract is for the payment of money, or the performance of some personal duty, and remains executory, amount to a ratification; yet in general, an express act done under a contract of his infancy, implying a confirmation of it, has been held to be sufficient.” See also Forsyth v. Hastings, 27 Vt. 646. Regarding these conditions as not only sufficient but required, we think they are all covered by the finding of the auditor. Taking that which she said to her mother after arriving at full age and while still at the seminary, in connection with the unmistakable understanding between the parties during the infancy, and all the circumstances, the conclusion seems to us irresistible that there was a.mutual understanding that Lura would not only repay her mother for the future advances, but would pay the past advances as she had first promised. She then called the first arrangement “ her former promise,” and told her mother she wished it to continue as it had been before'she became of age.
When the minds of contracting parties meet and they both understand that by what is said it is intended that it should be taken as an assumption of an obligation and a promise to pay, it is the equivalent of a promise in terms.
There is no question but Lura spoke deliberately and without [172]*172duress in any form; and we think it is plain that she spoke understanding^ as to her legal liability. It has been held that in the absence of any proof to the contrary, it is to be presumed, that at the time of making the new promise, the person, lately an infant, was aware of his rights. Taft v. Sergeant, 18 Barb. 321. This would seem to be the natural presumption. But however this may be, the language of Lura, under the circumstances in which it was spoken, imports such knowledge. It is difficult to see what should lead Lura to renew her promise as to the payments in her behalf during infancy except upon .the theory of knowledge that such renewal was necessary to create legal liability. She was then at the seminary, her contemplated education incomplete, and no change from the previous condition except that she had attained her majority. She then brings the matter up, reiterates her desire to go on, and in effect renews her former promise so as to make the renewal applicable as to past as well as for future advances. She had the education which about two years in the academy would bring, after* having passed through the common school. We come to the conclusion of her knowledge of the legal situation without hesitation.
The plaintiff further, claims to recover for an organ which the auditor finds she bought for Lura in 1872, when the latter was about sixteen years old, at her request, and which Lura claimed and treated as her own from its purchase till her death in 1877 ; and it was so regarded in the family. Lura’s home was always at her mother’s, and the organ was kept there, except that Lura had it with her when away at school for a short time. The auditor says he does not find there was any express contract' by Lura to pay any of the expenses incurred by her mother for her, except those incident to her schooling.
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The opinion of the court was delivered by
Veazey, J.
Exceptions were taken to the judgment rendered upon the auditor’s report, in which the facts are concisely stated. The plaintiff was the mother of Lura E. Hatch, deceased, and claims to recover the items of her account in controversy on the ground of a contract between the mother and daughter while the latter was a minor of sixteen years of age, and a ratification of the same after she became of full age. The first item, including interest to September 1, 1886, was $720.20, for money which the plaintiff paid for school expenses of Lura while attending academies.
We think the report shows a distinct agreement on the part of Lura to repay her mother for these expenses. Upon the facts reported the agreement was a natural one to be made, and was in its nature beneficial to the minor. The mother clearly could not afford to give her daughter the higher education which she desired. The latter had the means to be devoted to such use by the devise to her by her father, but not in ready money. The finding of the auditor is incapable of a fair construction other than of an agreement as above stated, when taken in connection with the circumstances existing when the arrangement was made.
The defendant relies mainly upon the claim that this contract was not ratified after Lura arrived at her majority. The [170]*170finding of the auditor is this: “After Lura became of age, and while still attending the seminary at Montpelier, she reiterated to her mother her desire to go to school there and her willingness to pay the expenses incident thereto from her own share, and referred approvingly to her former promise to that effect during her minority. She told her mother she wished this arrangement to continue as it had been before she became of age.” There is no question but that the contract, by which a debt is incurred by an infant, may be ratified by an express promise to pay the debt, made by the infant, when he becomes of age, deliberately and with knowledge that he is not liable by law. To this extent the cases agree. Beyond this they are not entirely harmonious, at least in the enunciation of what is required to constitute ratification. As illustrations, see Smith v. Mayo, 9 Mass. 62, and Whitney v. Dutch, 14 Mass. 457.
There are many .cases which hold that although an express ratification is necessary, yet it is not required to be in the form of an express new promise. Tibbitts v. Gerrish, 5 Foster (N. H.), 41, and Harris v. Wall, 1 Exch. 122, are examples. Acts and declarations of one after attaining majority, in favor of his contract, may be of a character to constitute as perfect evidence of a ratification as an express and unequivocal promise. Mere acknowledgment of the contract, or partial payment, will not alone be sufficient. There must either be an express promise to pay, or such a direct confirmation as'expressly ratifies the contract, although it be not in the language of a formal promise. Wilcox v. Roath, 12 Conn. 551; Gray v. Ballon, 4 Wend. 403; Whitney v. Dutch, supra. The cases in Vermont have not recognized the necessity of an express promise in terms in order to constitute ratification of an obligation incurred during infancy. Where the declarations or acts of the individual after becoming of age fairly and justly lead to the inference that he intended to and did recognize and adopt as binding an agreement executory on his part made during [171]*171infancy, and intended to pay the debt; then incurred, we tbink it is sufficient to constitute ratification, provided the declarations were freely and understanding^ made, or the acts in like manner performed, and with knowledge that he was not legally liable. This proposition is clearly within the scope of decision in a long line of approved authorities, cited in Tyler on Infancy and Coverture, 2d ed. chap. VI., and 1 Am. Lead. Cases, p. 250.
The Vermont cases plainly warrant us in holding that the above conditions are sufficient. In Bigelow v. Kinney, 3 Vt. on p. 353, Prentiss, Ch. J., says : “ Though it is laid down that a bare acknowledgment or recognition of the contract of an infant, after he comes of age, without an express promise, will not, where the contract is for the payment of money, or the performance of some personal duty, and remains executory, amount to a ratification; yet in general, an express act done under a contract of his infancy, implying a confirmation of it, has been held to be sufficient.” See also Forsyth v. Hastings, 27 Vt. 646. Regarding these conditions as not only sufficient but required, we think they are all covered by the finding of the auditor. Taking that which she said to her mother after arriving at full age and while still at the seminary, in connection with the unmistakable understanding between the parties during the infancy, and all the circumstances, the conclusion seems to us irresistible that there was a.mutual understanding that Lura would not only repay her mother for the future advances, but would pay the past advances as she had first promised. She then called the first arrangement “ her former promise,” and told her mother she wished it to continue as it had been before'she became of age.
When the minds of contracting parties meet and they both understand that by what is said it is intended that it should be taken as an assumption of an obligation and a promise to pay, it is the equivalent of a promise in terms.
There is no question but Lura spoke deliberately and without [172]*172duress in any form; and we think it is plain that she spoke understanding^ as to her legal liability. It has been held that in the absence of any proof to the contrary, it is to be presumed, that at the time of making the new promise, the person, lately an infant, was aware of his rights. Taft v. Sergeant, 18 Barb. 321. This would seem to be the natural presumption. But however this may be, the language of Lura, under the circumstances in which it was spoken, imports such knowledge. It is difficult to see what should lead Lura to renew her promise as to the payments in her behalf during infancy except upon .the theory of knowledge that such renewal was necessary to create legal liability. She was then at the seminary, her contemplated education incomplete, and no change from the previous condition except that she had attained her majority. She then brings the matter up, reiterates her desire to go on, and in effect renews her former promise so as to make the renewal applicable as to past as well as for future advances. She had the education which about two years in the academy would bring, after* having passed through the common school. We come to the conclusion of her knowledge of the legal situation without hesitation.
The plaintiff further, claims to recover for an organ which the auditor finds she bought for Lura in 1872, when the latter was about sixteen years old, at her request, and which Lura claimed and treated as her own from its purchase till her death in 1877 ; and it was so regarded in the family. Lura’s home was always at her mother’s, and the organ was kept there, except that Lura had it with her when away at school for a short time. The auditor says he does not find there was any express contract' by Lura to pay any of the expenses incurred by her mother for her, except those incident to her schooling.
We think these findings are insufficient to warrant the holding of the relation of debtor and creditor between Lura and her mother. There was no appointed guardian, and they held the ordinary relation of parent and child. The only ground for hold[173]*173ing that the purchase of the organ created an indebtedness is that the mother bought it at the request of the daughter. While that might be sufficient as between strangers, we think it is not sufficient as between parent and child; especially in reference to such an article and under the circumstances shown in the report. There is not enough shown to distinguish the case from the ordinary one, where the parent indulges the request of a child.
The plaintiff also claims to recover for nursing Lura in her last sickness, and for the physician’s bill. This claim is clearly without legal foundation.
Neither can she recover for the burial expenses of Lura. These belong to the administrator of her estate to pay. This case is an appeal from the allowance of commissioners on claims against Lura’s estate, and the jurisdiction is limited to claims accruing during the lifetime of the deceased. Sawyer v. Hebard, 58 Vt. 375.
The defendant presented to the auditor an account against the plaintiff, containing an item for the use and occupation of that portion of the farm which Lura’s father, who died in 1872, devised to her in his will. This item covered the whole period from.the time of the father’s decease to the time of this accounting, being about five years before t Lura died, and nearly nine years since. The finding of the auditor as to how the farm was earned on and the home maintained by the mother and the understanding between her and Lura, plainly exclude all ground of claim for rent against the mother for the period prior to Lura’s death.
The plaintiff objected to the allowance of that part of the item which accrued after Lura’s decease on various grounds, one of which is that this claim is not one which grew out of the contract in which the plaintiff’s accountaccrued, and did not accrue to the defendant under that contract but independently of it, and therefore cannot be allowed in offset to, or as ci’edit against the plaintiff’s account. The original contract which [174]*174constituted the basis of the plaintiff’s account was in substance and effect a loan of money to Lura. Tbe claim of the defendant for the mother’s use and occupation of Lura’s share in the farm, after her decease, was independent of that contract.
In defining the power of commissioners appointed to receive and adjust claims, the statute, sec. 2117, E. L. provides that they “ may try and decide upon claims which by law survive against or in favor of executors and administrators,” etc., and “ may set off such demands, in the same manner in favor of the estate.” This plainly refers to claims existing at the time of the decease. The word survive indicates that. Again in sec. 2127, the provision is : “When a creditor, against whom the deceased had claims, presents a claim to the commissioners, the executor or administrator shall exhibit the claims of the deceased in offset,” etc. This is in harmony with the previous section, and as plainly limits the offset to claims existing at the time- of the decease. That which accrued afterwards had never accrued to the deceased person. That part of the rent which accrued after Lura’s decease, accrued to her administrator as an asset of the estate, and came within the operation of those sections of the statutes which regulate the distribution of assets, ss. 2190, 2191. In Aiken v. Bridgman, 37 Vt. 249, the court said: “A defendant is not allowed to setoff a debt due him from the plaintiff’s testator against the debt which accrued to the plaintiff in his representative capacity after the testator’s death; for this would be altering the due course of distribution of assets, and the defendant might be indirectly paid before the creditors of a higher degree.” We think this rule and the reason of it applies to this case. Upon both principle and authority there is no mutuality in the accounts sought to be offset, one against the other. Harris v. Taylor, 53 Conn.. 500; Stephens v. Cotterell, 99 Penn. St. 188. The.offset cannot be allowed.
This disposition of this item of the account in offset renders-it unnecessary to pass on the question of homestead and dower.
[175]*175It appears that when the executor of B. B. Hatch’s will, settled his administration account he had a balance of cash $58.84, belonging to the residuary legatees, and he. paid the same to the plaintiff. The proportion of that belonging to the estate of Lura was $12.85. The plaintiff still holds that fund and so far as appears must pay it with interest to the defendant. But it does not appear that it accrued to Lura while in life, and is not therefore' a proper item of offset in this case.
Motion was made in the County Court to recommit the auditor’s report, which was overruled, to which the defendant excepted. The ground of this motion was that the defendant 'filed several requests with the auditor to find and report facts involved in the defence and which the defendant had the right to have reported, but which the auditor did not report.
The difficulty with the defendant’s point is that there is nothing in the record before us to show that the court was in error -in refusing to recommit, even if the right of exception exists to such a ruling.
“Exhibit U,” upon which the defendant’s counsel mainly rely in support of this alleged error of the County Court, fails to show the vitiating fact which they assumed was therein shown.
The plaintiff waives her exception to the ruling excluding her account books so-called. The apportionment of costs by the County Court was apparently warranted ; and we do not think the disallowance of the offset affords reason for changing the order, in view of the large decrease from the allowance of the commissioners.
The judgment is reversed, and judgment is rendered for the plaintiff for the item of $720.20 and interest thereon, and costs in this court; the cost previous to be apportioned. Let this judgment be certified to the Probate Court.