Mr. Chief Justice Alvey
delivered the opinion of the Court:
On this appeal, the defendant, the appellant, has assigned several errors in the rulings of the court below:
1st. In holding that the plaintiff was a competent witness to testify in her own behalf under the statute.
2d. In refusing to take the case from the jury for want of sufficient evidence for them to consider.
[84]*84Sd. In granting the several prayers offered by the plaintiff.
4th. In refusing to grant certain prayers offered by the defendant, and in qualifying certain other prayers that were granted.
5th. In instructing the jury that there was no difference in the right of the plaintiff to recover in respect to services rendered after she attained the age of 18 years and before she attained the age of 21 years, and those rendered after the plaintiff became of the age of 21 years, under the facts of the case; and,
6th. In instructing the jury that the plaintiff might recover upon an understanding between herself and her father that she would be paid for her services by her father in his will; and that, upon such finding by the jury, the statute of limitations formed no bar to the action.
1. With respect to the first question raised by the errors assigned, that as to the competency of the plaintiff to testify as a witness in her own behalf, we perceive no error in the ruling of the court below. The Revised Statutes, United States, Sec. 858, provides: “That in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite' party, or required to testify thereto by the court.”
This is not a new question upon the construction of the statute. The code of the State of Tennessee contains a provision identical with the provisions of the Revised Statutes, United States, in respect to this matter, and the Supreme Court of that State has held, that, in an action against an administrator, the plaintiff was competent to testify in his own behalf in regard to any subject not the controverted transaction between the deceased and the surviving party. MmnisY. Abrams, 105 Tenn. 662. Here the controverted transaction alleged to have occurred between the father and the daughter, is the contract or understanding that the daughter was to be compensated for her services (conceded to have been rendered) either in the lifetime of the father or by a provision in his will. It is not controverted or denied that the services were rendered, but it is denied that there was any agreement or understanding in regard to compensation therefor. We think it clear that the plaintiff was competent to testify as to the fact of the rendition of the services, and the value thereof, though not as to any contract or understanding with her father as to compensation.
2. With respect fo the question as to whether the evidence was sufficient to be submitted to the jury, and upon which they could find for the plaintiff, that may be considered in connection with the several errors assigned upon the granted [86]*86and rejected prayers for instruction. The entire subject presented would seem to be embraced within a few plain propositions of law, and which do not require extended discussion.
As we have seen, the plaintiff claimed for services rendered from the time she was 18 years of age, and the court ruled that she could rightfully claim and recover for services rendered at any time between the ages of 18 and 21 years, as well as for services rendered after she had attained the age of 21 years. In this we think there was error. There was no proof whatever that the father had emancipated the daughter before she had attained the age of 21 years; nor does any declaration of his, given in proof, furnish the slightest indication of an intention to emancipate her, or to pay her for services rendered prior to the age of 21. Such claim being in contravention of the rights of the father in the services of the child, should be established by clear and unmistakable evidence. That it was competent to the father to emancipate the daughter before the age of 21 years may be conceded, and also to agree to pay her for her services after such emancipation, but the facts must be shown by clear and distinct proof, as no presumption can be indulged in favor of the claim in such ease. Indeed, it was conceded by the learned court below that the law does not imply an obligation on the part of the parent to pay a minor child for her services, and [the court] seemed to be in doubt whether the claim ought to be pressed for services rendered by the plaintiff between the age of 18 and 21 years; but upon the insistence of counsel the instruction was allowed to stand.
But the case stands upon quite a different footing after the child attains the full age of 21 years. He or she then becomes entirely emancipated from parental control, and may engage to render services as he or she may deem proper, whether to parent or to other parties. But whether son or daughter, the child, by continuing with the parent and living at the same home, as part of the parent’s family, may still be legally in the service of the parent. On this point, says Professor Schouler, in his work on Domestic Delations, S'ec. 269, there is no dispute; but in settling the presump[87]*87tions of law there is apparently some conflict of authority, especially in some recent cases decided by courts of high authority. The law, however, upon the subject, so far as it is here involved, seems to be well and correctly summed up by that author, in the following text, supported by a large collection of cases cited:
“
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Mr. Chief Justice Alvey
delivered the opinion of the Court:
On this appeal, the defendant, the appellant, has assigned several errors in the rulings of the court below:
1st. In holding that the plaintiff was a competent witness to testify in her own behalf under the statute.
2d. In refusing to take the case from the jury for want of sufficient evidence for them to consider.
[84]*84Sd. In granting the several prayers offered by the plaintiff.
4th. In refusing to grant certain prayers offered by the defendant, and in qualifying certain other prayers that were granted.
5th. In instructing the jury that there was no difference in the right of the plaintiff to recover in respect to services rendered after she attained the age of 18 years and before she attained the age of 21 years, and those rendered after the plaintiff became of the age of 21 years, under the facts of the case; and,
6th. In instructing the jury that the plaintiff might recover upon an understanding between herself and her father that she would be paid for her services by her father in his will; and that, upon such finding by the jury, the statute of limitations formed no bar to the action.
1. With respect to the first question raised by the errors assigned, that as to the competency of the plaintiff to testify as a witness in her own behalf, we perceive no error in the ruling of the court below. The Revised Statutes, United States, Sec. 858, provides: “That in actions by or against executors, administrators or guardians, in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other, as to any transaction with, or statement by, the testator, intestate, or ward, unless called to testify thereto by the opposite' party, or required to testify thereto by the court.”
This is not a new question upon the construction of the statute. The code of the State of Tennessee contains a provision identical with the provisions of the Revised Statutes, United States, in respect to this matter, and the Supreme Court of that State has held, that, in an action against an administrator, the plaintiff was competent to testify in his own behalf in regard to any subject not the controverted transaction between the deceased and the surviving party. MmnisY. Abrams, 105 Tenn. 662. Here the controverted transaction alleged to have occurred between the father and the daughter, is the contract or understanding that the daughter was to be compensated for her services (conceded to have been rendered) either in the lifetime of the father or by a provision in his will. It is not controverted or denied that the services were rendered, but it is denied that there was any agreement or understanding in regard to compensation therefor. We think it clear that the plaintiff was competent to testify as to the fact of the rendition of the services, and the value thereof, though not as to any contract or understanding with her father as to compensation.
2. With respect fo the question as to whether the evidence was sufficient to be submitted to the jury, and upon which they could find for the plaintiff, that may be considered in connection with the several errors assigned upon the granted [86]*86and rejected prayers for instruction. The entire subject presented would seem to be embraced within a few plain propositions of law, and which do not require extended discussion.
As we have seen, the plaintiff claimed for services rendered from the time she was 18 years of age, and the court ruled that she could rightfully claim and recover for services rendered at any time between the ages of 18 and 21 years, as well as for services rendered after she had attained the age of 21 years. In this we think there was error. There was no proof whatever that the father had emancipated the daughter before she had attained the age of 21 years; nor does any declaration of his, given in proof, furnish the slightest indication of an intention to emancipate her, or to pay her for services rendered prior to the age of 21. Such claim being in contravention of the rights of the father in the services of the child, should be established by clear and unmistakable evidence. That it was competent to the father to emancipate the daughter before the age of 21 years may be conceded, and also to agree to pay her for her services after such emancipation, but the facts must be shown by clear and distinct proof, as no presumption can be indulged in favor of the claim in such ease. Indeed, it was conceded by the learned court below that the law does not imply an obligation on the part of the parent to pay a minor child for her services, and [the court] seemed to be in doubt whether the claim ought to be pressed for services rendered by the plaintiff between the age of 18 and 21 years; but upon the insistence of counsel the instruction was allowed to stand.
But the case stands upon quite a different footing after the child attains the full age of 21 years. He or she then becomes entirely emancipated from parental control, and may engage to render services as he or she may deem proper, whether to parent or to other parties. But whether son or daughter, the child, by continuing with the parent and living at the same home, as part of the parent’s family, may still be legally in the service of the parent. On this point, says Professor Schouler, in his work on Domestic Delations, S'ec. 269, there is no dispute; but in settling the presump[87]*87tions of law there is apparently some conflict of authority, especially in some recent cases decided by courts of high authority. The law, however, upon the subject, so far as it is here involved, seems to be well and correctly summed up by that author, in the following text, supported by a large collection of cases cited:
“ If a child, after arriving at the age of twenty-one years, continues to live, labor and render service in the father’s family, with his knowledge and consent, but without any agreement or understanding as to compensation, the law raises no presumption of a promise to enable the child to maintain an action against the father to recover compensation. The presumption here is, that the parties do not contemplate a payment of wages for services, on the one hand, nor a claim for board or lodging, on the other. For where the relation of parent and child exists, the law will not readily assume that of debtor and creditor likewise; but board and services may constitute a fair equivalent in the general household. But this presumption may be overthrown, and the reverse established by proof of an express or implied contract to that effect; an implied contract being proven by facts and-circumstances which show that both parties, at the time the services were performed, contemplated or intended pecuniary recompense. If an express contract by the parent to pay for the child’s services be thus shown, but not the rate of compensation, a recovery may be had upon a quantum meruit for what these services were fairly worth. The declarations of parents in matters of this sort, if somewhat vague, are not apt to be construed in the child’s favor.” Sch. Dom. Bel., Sec. 269.
This, we think, is a fair statement of the law upon the subject, and embodies the principles that must govern the case. There is no question of the meritorious services rendered by the plaintiff; and we think the proof, furnished principally by the repeated hut varied declarations of the • deceased, of his purpose and intention to provide for his daughter, and to save her from want, and his great desire to keep her with him, was of a character that made it proper to be submitted to the jury for their consideration.
[88]*88As to the nature and mode of compensation, if a contract or understanding be found to exist, there can be no real difficulty. It is well settled that where, from the circumstances of the case, it is manifest that it was understood by both parties that compensation should be made by will, and none is made, an action lies to recover the value of such services. Wood, Mast. & Servt., Sec. 71. And in this aspect of the case, if such contract or understanding be found by the jury, the statute of limitations, as held by the court below, would form no bar to the action.
It is unnecessary to examine each of the rulings of the court below excepted to, separately; but, from what we have said, it follows that the judgment below must be reversed, and the cause be remanded for a new trial. And under the special circumstances of this case, we deem it proper to direct that the costs of this appeal be paid out of the assets of the estate of the deceased; and it is so ordered.
Judgment reversed and cause remanded.
See See. 1064 of the District of Columbia Code, in effect January I, 1902.— Reporter.