Kennard v. Whitson

1 Del. 36

• Court: Superior Court of Delaware
• Decided: July 1, 1855
• Status: Published

Opinion

The Court,

Houston, J.,

charged the jury: That if the services referred to, in the way of assiduous nursing and attention during the severe and protracted illness of the deceased, were rendered by the wife ¡of the plaintiff with the hope and expectation merely of being remembered and rewarded for them in his will, and without any intention on the part of her husband to make any charge for them at the time, then they were to be regarded as offices of favor and kindness only, and would furnish no ground of action against his estafe; for in such a case, whether there should be any reward or compensation, and what should be the amount of it, were left entirely to'the grati'tude and discretion, the bounty and generosity of the testator, and the plaintiff would be without any legal redress if disappointed in these expectations: This remark, however, would not apply to any balance that might be due for actual board at the time of the death of the testator, according to the .price agreed upon between the plaintiff and the deceased. ¡But an agreement to board and lodge a person, implied, an engagement to pay the usual and reasonable attentions to the comfort and health of the boarder to be expected under the circumstances, and such reasonable and customary attentions would furnish no ground for a distinct or additional charge against the boarder. There was nothing, however, in this relation or agreement which would entitle the boarder to expect or demand of the wife or family of the person boarding him, the usual and often arduous attentions and services of a nurse, in a case of extreme or protracted- illness, without paying additionally for them; and if such services had been performed by the wife of the plaintiff for the deceased with the intention of charging additionally for them, and with the expectation of being paid for them, without reference to the testamentary dispositions of the testator, then the plaintiff would be entitled to recover such additional compensation for them as would be just and reasonable, according to the nature and amount of the services rendered.

Gordon, for the plaintiff. Bradford, for the defendant.

Verdict for the plaintiff for $1029.36f.