Her aunt had been beating her, and her mother came in, and she said she would take her away; that she would not have her daughter treated that way; that she had been made a slave of all her life ever since she was there. Her uncle stepped up and said, if she would let her stay, that things would be different; that she should have a good home as long as he lived, and at his death he would provide for her; that she should never want as long as he lived. Annie's, mother agreed to let her stay, and she stayed until she was married. After I left, Annie had to do the house work and sew too. This conversation occurred about twenty years. ago." be demanded, where the claim is not barred by between her mother and Mr. Heathcote, in refthe Statute of Limitations, for services rendered erence to Annie, a week or two before I left. by request, even if the person rendering them did so in expectation of a legacy (Addison on Contracts, *53; Roberts v. Swift, 1 Yeates, 209; Thompson v. Stevens, 21 Smith, 161, etc. etc). It is different where services have been rendered, without request, in the hope of receiving a legacy, and where, consequently, there is no contract whatever on the part of the party receiving them. But, as was said by Judge STRONG in Graham v. Graham (10 Casey, 481), such cases are "always dangerous, and, when they rest upon parol evidence, should be strictly scanned. Especially, when an attempt is made, under cover of a parol contract, to effect a distribution different from that which the law makes, or that which the decedent has directed by his will, should it meet with no favor in a court of law. Such contract may be enforced only when it is clearly proved by direct and positive testimony, and where its terms are definite and certain." In the case now under consideration, Mrs. Walls, the claimant, was brought to this country, when a young child, by the decedent, of whose wife she was the niece. She remained with him as a member of his family for about eighteen years, when she married and removed to her husband's home in Vineland, New Jersey, though at various subsequent times she returned, with one or more of her children, and made visits of greater or less duration. Her marriage took place about ten years before the decedent's death. The parties appear to have been in comparatively humble circumstances; and when the claimant, who was only six years of age when she became a member of the family, grew old enough, she assisted her aunt in doing the work of the house, and finally, it would seem, during the latter years of her stay, attended to it altogether. She now claims that the decedent promised, in consideration of her services, and of her remaining with him for the time she did, to make such provision for her by his will as would support her for life. The only evidence of anything like an express contract on the part of the decedent to compensate the services thus rendered, is found in the testimony of Mrs. Dukes, the material parts of which are as follows: "I knew Mr. and Mrs. Heathcote during their lifetime. My former occupation was dressmaking; I learned my trade with Mrs. Heathcote. I lived in the house with them for seven or eight years. I did the work of the house until Annie was twelve years old, when she was taken away from school and had to do it. She continued to do that until she was married. I left there in 1864. She was about fourteen years of age then. I heard an interview Assuming that the testimony of the witness as to what had thus been said twenty years before was entirely accurate, and that the claimant, upon becoming of age, might avail herself of a contract made for her during her minority, it still remains that, to entitle her to its benefits, her own part of the contract must be fully performed. Bearing in mind the principles already stated which govern cases of this character, the fair interpretation of the contract testified to is that the claimant should "stay with" the decedent as long as he lived, as the consideration of his promise to furnish her with a home while he lived and provide for her at his death. She did not do this, but left him and went to her own home, where she resided at the time of his wife's death and of his own. Having thus voluntarily put an end to the contract, the obligation ceased, and neither party was bound by it any longer. Compensation for services theretofore rendered, if it could be demanded at all, could only have been under a quantum meruit upon an implied, contract; and such claim, when the decedent died, was barred by the Statute of Limitations. The case thus, it would seem, becomes identical with Pollock v. Ray (4 Norris, 428), where a similar claim was rejected by the Supreme Court. That the parties themselves, eight years after the occurrence related by Mrs. Dukes, regarded the decedent as under no obligation, is demonstrated by the evidence of Dr. Ingraham, who was also called as a witness by Mrs. Walls, the claimant. In 1872 or 1873, it was supposed that her mother, Mrs. Elkton, was about to die, and Mrs. Heathcote, having been telegraphed for, went to Vineland. Finding her in great distress of mind, Mrs. Heathcote asked her the cause. Her reply was that it was because of her great anxiety as to what would become of her daughter, who, in the event of her death, "would be left without any means for her sustenance or anything of that sort." To this Mrs. Heathcote answered: "If that is all, you need not trouble yourself, Annie will be provided for amply. Mr. Heathcote and I have agreed that this shall be seen to, that Annie will be cared for." "This," Dr. Ingraham testified, "seemed to quiet Mrs. Elkton very much, and she subsequently recovered from her sickness, not dying for a considerable length of time after that, and then of a different disease." There is here no suggestion, on the part of either the mother or Mrs. Heathcote, that the decedent was already bound by a contract, such as that spoken of by Mrs. Dukes, to "provide a good home for Annie as long as he lived and at his death to provide for her so that she should never want while he lived ;" and the distress of mind on the part of the mother is wholly incompatible with the idea of the existence at that time of such a contract. What Mrs. Heathcote said was simply indicative of a voluntary undertaking on the part of herself and husband that the child of a dying sister should be "cared for." do so for Mrs. Walls. . . . . He was very frank in the expression of making ample provision for Mrs. Walls." Henry Cox, another witness, testifies that the decedent, when his wife narrated to him what had occurred upon the occasion of her visit to Mrs. Elkton at the time of her sickness, spoken of by Dr. Ingraham, replied: "We will attend to the little girl, and see that she never wants as long as she lives. When I am gone I will take care of her." The same witness testifies that he frequently heard the decedent declare that he "would look out for Annie after he died; that she should always be cared for." Another witness, Mrs. Bentley, said that, in a conversation with her in 1876, with regard to the precarious occupation of Mr. Walls, who was a sailor, the decedent exclaimed: "Poor girl, I will take care of her while I live, and at my death she is amply provided for, she and her child." And his wife coming in and asking what he was talking about, he said: "I was just telling her that we will provide for Annie during our lifetime, and at our death she is provided for . . . . I told Annie and her mother, and they both know. She has been a faithful girl to us, and done all the work." The only remaining witness, Mrs. Blakemore, testified that Mr. Heathcote and Mrs. Heathcote "always said they would never see Annie or her children want for anything. . . . . They would frequently say... You know Annie was always a good little girl to us, and we will never see Annie want, or her children." Four years later, as Dr. Ingraham further testified, the decedent said to him while attending Mrs. Heathcote, who was then very ill, "My God! what am I to do? If my wife is taken away what is to become of me? Annie is married, and she cannot come and take care of me any further." He said, at the same time, "that he was extremely sorry she could not come, as she had been with them for a long time, having been raised by them, and they owed her a debt of gratitude, which he did not know that money could repay, but he meant to compensate her for it... That he would see that she was All of this testimony shows nothing more than amply provided for. He said that he a voluntary intention, not the result of any legal and his wife felt bound by every consideration, obligation, to make a testamentary provision, or, moral and otherwise, to compensate Annie for that such provision had actually been made. the services she had rendered and the great deal Her children, as to whom it is not pretended of care she had taken in their behalf during the there was any contract, are coupled, as some of time she lived with them. He was the witnesses say, with the claimant in the referfeeling very badly, not knowing that his wife ences made to the subject by the decedent. was not going to die, and regretting extremely There was nothing to prevent a subsequent that Annie's condition was such that she could change of intention, whether the will was only not come to his house and take care of it as contemplated or had actually been executed. formerly." Nor could anything be more vague and indefinite and incapable of measurement than the expressions attributed to the decedent, that he would look out for" Annie, or that she should "always be cared for," or "amply provided for," etc. etc. etc. This was in 1876. It certainly shows nothing like a recognition of any legal obligation to provide for the claimant, but a mere gratuitous intention to do so in discharge of a "debt of gratitude." It does show, moreover, that Annie had left him, and that she "could not come to his house and take care of it as formerly." In 1882 the subject was again spoken of in a conversation with Dr. Ingraham, the occasion being the uneasiness of the decedent with regard to the appearance of ill-health manifested by Mr. Walls, the husband of the claimant. He then said, "that he did not feel ready to make any provision for Mr. Walls, but he was going to The entire testimony on the part of the claimant has been carefully gone over, and we have been forced to the conclusion that it does not come up to the standard required by the authorities in this class of cases. Both the quality and sum" of the evidence, as was said in Pollock v. Ray, supra, "were insufficient to establish it," and the exception to the allowance must therefore be sustained. The exceptions to the allowance of the claim of Mrs. Cox are overruled, it having been found upon sufficient evidence that the services were rendered; that the decedent promised to pay; and that he died without having fulfilled his promise. It was said in Harbold's Executors v. Kuntz | the third officer, and a part of her crew were on (4 Har. 214), that "admissions are the easiest board. She was the only vessel in the dock, mode of testimony to lead to error, the kind of which was a large one, giving her abundant room evidence most apt to be misapprehended and in which to move out. A serious fire broke out mistaken, and in relation to which a facile con- on Pier 46, to the north of Pier 47, but separated science may stretch itself like India rubber." from it by a dock ninety-one feet wide. The Such evidence is particularly dangerous when wind blew towards Pier 47 at first, but soon offered in support of claims against the estates of shifted, so that only the posts and shed on the dead men, and the witnesses undertake to detail north side of that pier were burned, and that conversations occurring many years before and but slightly. Soon after the fire broke out, Mr. relating to matters in which they had no personal Fuller, assistant marine superintendent of the interest. steamship company, ordered her lines cast off with a view to getting her out of the dock. To do this quickly, one of the lines was cut. A number of tugs had come to the scene of the fire, to give help to such vessels as might need it, and Mr. Fuller hailed the Crawford and the Cain, asking them to tow the Indiana out into the river. The tide had just begun to ebb, so that before the tugs reached the Indiana, she had begun to drift out of the dock. The tug Toy was lashed to the Crawford when the latter's services were engaged, but rendered no material assistance. Just before the tugs began to tow the vessel, the first officer came on board. The Crawford and the Cain towed the Indiana out to the middle of the river, and afterwards to a pier farther down, where she was made fast; they were retained to dock ner after the fire. They were with her about three hours altogether, until they were dismissed. The tug Jamesburg, belonging to the Pennsylvania Railroad Co., had come up just after the Crawford and the Cain had been engaged. As the tugs had been engaged, her assistance, which would have been given without charge, was declined. The Indiana was worth from $150,000 to $250,000. The Crawford had been somewhat damaged by the fire when coming out of the dock where she lay into the river. The disallowance of the claim of Mrs. Walls will leave a balance for distribution, subject to the payment of collateral inheritance tax, and the account will therefore have to be referred back for further proceeding. An opportunity will then be afforded to the accountant to ask for compensation, the omission of which in the account was not called to the attention of the Auditing Judge. Exceptions sustained to the extent indicated, and account referred back to the Auditing Judge for further proceeding. Opinion by PENROSE, J. W. C. S. U. S. District Court— Salvage-Towing a vessel from a burning dock is a salvage service-Compensation-Costs. Hearing on libel, answer, and depositions. Libel for salvage, filed by the masters of the tugs Lizzie Crawford, E. L. Cain, and Charles H. Toy, against the steamship Indiana. The facts were as follows:-— Between five and six o'clock P. M. on No vember 17, 1883, the iron steamship Indiana, of three thousand tons burden, was lying in the dock south of Pier 47, on the Delaware River, with lines fastening her to the pier. She had no cargo on board, and her sails had been unbent and sent down. She had enough steam on to supply the donkey-engine, and her fire-hose had been laid for the night. She was in charge of The amount claimed for salvage was $10,000. The respondents had been willing to pay a liberal towage fee. Henry Flanders and Edward F. Pugh, for the libellants. The fact that the tugs went to the fire for the express purpose of saving any vessel in danger does not detract from the merit of their service. It is no discredit to a vessel to engage in salvage as a business. In ascertaining the value of a salvage service | unreasonably small; while in others it seems so the question of its duration is immaterial. The B. C. Terry, 9 Fed. Rep. 920, 927. That the amount claimed ($10,000) is not exorbitant may be seen from what was allowed in the following cases: The Suliote, 5 Fed. Rep. 99. Morton P. Henry and Henry Galbraith Ward, for the respondents. The service rendered was technically salvage (as the parties were not connected with the ship and there were circumstances which made necessary a removal in consequence of peril, not for the purpose of a voyage), but only technically. The testimony disproves the greatness of the peril as stated in the libel. The service was such as is usually recompensed by rates above the usual towage rates, but not at all on the scale of salvage rates. The testimony clearly shows that the services of the Toy were not only not engaged, but distinctly declined. As the arrest of the vessel was procured by allegations in the libel, which were grossly exaggerated, if not untrue to the knowledge of the libellants, the Court should dismiss the libel with costs. The Sampson, 4 Blatch. 28. Irzo v. Perkins, 10 Fed. Rep. 779. January 13, 1885. THE COURT. That the libellants rendered a salvage service I cannot doubt. The respondent (in the brief submitted) admits that it was "a technical salvage service, in respect that the parties were not connected with the ship, and there were circumstances which required a removal in consequence of peril, not for the purpose of a voyage. When it is considered, however, that the vessel is constructed of iron, that the sails were packed away, that she was without cargo, had capacity to move (though limited), that a number of tugs, capable and willing to aid her, were at hand, the peril seems to have been very slight indeed. What is a just compensation for the service it is difficult to determine. There is no rule by which it can be accurately measured. The time, labor, expense, and risk, expended and incurred, and the enterprise shown by the libellant, and the value of the services to the respondent, must be considered. An examination of adjudicated cases involving salvage, affords little, if any, aid. Each case stands upon its peculiar facts; and no two are alike. What is a proper allowance is a question for the sound discretion of the Court. In some of the reported cases the allowance, viewed in the light of the reported facts, seems grossly excessive as to look almost like robbery. While the value of the property saved is entitled to consideration, it is by no means entitled to a controlling influence. Considering the circumstances before adverted to the time, labor, expense, and risk, expended and incurred, and enterprise shown, by the libellants, and the value of this to the respondentwhat compensation should be allowed? The time occupied was but a few hours; the labor and expense were little, if any, greater than that involved in ordinary towage, for the same period; the risk involved (to the libellants) was very slight, and the enterprise displayed was not extraordinary. If the respondent had been entirely without power to move, and no other help than that of the libellants been within reach, the value of the service to her would have been very great. As we have seen, however, she could move (though probably with some risk), and abundant aid was at hand, awaiting call. In view of all the circumstances, I believe eleven hundred dollars to be a just allowance. I do not doubt that the libellants would very cheerfully have contracted, in advance, to render the service for a smaller sum; and Í think it improbable that the respondent would have contracted to pay more-considering her situation, and the abundant means of escape at hand. I do not think the damage sustained by one of the tugs should be charged to the respondent. This occurred as she passed out of the slip in which she lay when the fire broke out. While it is possible she might have remained in with safety I cannot believe she would have stayed so near the fire and taken the risk of destruction, even if the respondent had not required aid. I am asked to withhold costs from the libellants because of the extravagant claim (ten thousand dollars), for which the vessel was arrested. Were it shown that the respondent manifested a willingness to pay a reasonable compensation, I would grant this request. The arrest of vessels for claims so exorbitant as to justify a conclusion that the libellants know them to be unjust, is reprehensible, and deserves rebuke. But in the absence of an offer of adequate compensation, and considering the ease with which the respondent here might have had relief by application to the Court, I do not feel called upon to withhold costs. It is unnecessary to determine at this time how the sum awarded should be distributed among the several libellants, or whether the "Toy" is entitled to any part. It may not be improper, however, to say that upon the facts before me I would allow her nothing. A decree will be entered for $1100. C. C. B. WEEKLY NOTES OF CASES. On the afternoon of the day preceding the death of Mrs. Brooke, she had a conversation with her son, the defendant, in which, after stating that that was probably her last illness, she VOL. XV.] THURSDAY, APRIL 2, 1885. [No. 34. said to him: "I wish you would give Aunt Luther $2000." To which he answered: "I will, mother," and after a moment's reflection added: "I think it would be best to give Aunt Luther the interest of the $2000, and at her death the principal to the children" (meaning the plaintiffs). She replied: "Very well." She then said: "I wish you would divide my chain between Helen (defendant's daughter) and Kate (one of the plaintiffs), and give one-half to each, and the watch to Kate." He answered: "No, mother, I will not do so. I want Helen, as your grandchild, to have the watch and chain. I will buy a watch and chain for Kate." To which she replied: "Very well." The defendant then made a memorandum of the result or conclusion of the conversation, which he signed and submitted to his mother, and asked her if it was right, and she said "Yes." The memorandum was as follows:— "MEMORANDUM. A woman on her death-bed, who had made no will, requested A., her son, who was her only child, to pay the interest of a sum of money to B., her sister, during life, the principal to be paid to B.'s daughters after the death of their mother. She also requested her son to purchase a watch for one of B.'s daughters. A. reduced the terms of these requests to writing, naming himself as trustee, subscribed his name thereto, read it to his mother, and asked her if it was right, to which she answered, "Yes." After his mother's death A. gave to B. the memorandum which he had made of his mother's requests, and paid to In a conversation with mother this afternoon (Novemher during her life the income on the sum stipulated. He ber 1, 1871), she desired me in the event of her death to also purchased and presented the watch as requested. A bill in equity having been filed by B.'s daughters after their mother's death to enforce the trust created in their favor Held, that after A.'s written acceptance of the trust and the continued recognition of the obligation thereby imposed upon him he could not deny its existence, and that therefore complainants were entitled to the relief sought. Appeal of John B. Brooke from a decree of the Common Pleas of Berks County. Bill in equity, between Kate B. Hale and Louisa Von Bonhorst, complainants, and John B. Brooke, defendant, to compel the defendant to execute a trust in favor of the plaintiffs, alleged to have been created by the defendant's mother in her lifetime and accepted by the defendant. The defendant filed an answer, and the cause was referred to Richmond L. Jones, Esq., as Master and Examiner, who reported the facts to be as follows: Mrs. Catharine E. Brooke, a widow, died intestate in the city of Reading, November 2, 1871, leaving an estate worth about $52,000. John B. Brooke, the defendant, was her only child, and upon her death took possession of her estate, without letters of administration, and continues to hold and enjoy the same. The plaintiffs, Kate B. Hale and Louisa Von Bonhorst, are the grandchildren of Dr. Diller Luther and his late wife, Mrs. Amelia H. Luther, who was the sister of Mrs. Catharine E. Brooke, and died December 14, 1872. Kate B. Hale and Louisa Von Bonhorst, the plaintiffs, became of age respectively, February 12, 1878, and May 4, 1880. pay to Aunt Luther annually the interest of two thousand divided and one half settled upon each of her grand-nieces, ($2000) dollars. At her death the principal is to be equally Katie and Lulie. I to be the trustee of this sum until they become of age. She also wishes me to purchase for Kate on her 16th birthday a handsome gold watch and chain. Helen is to have the watch and chain she wears. (Signed,) JOHN B. BROOKE." The next day (Mrs. Brooke being dead) the defendant said to Kate (one of the plaintiffs) that his mother had remembered her, that a gold watch was to be given her on her sixteenth birthday, and that the principal sum of $2000 should be paid to her and her sister when they came of age. The defendant soon afterwards related to Dr. Diller Luther (the grandfather of the plaintiffs, with whom they lived) the conversation which had taken place between his (the defendant's) mother and himself, and delivered to Dr. Luther or to his wife, Mrs. Amelia H. Luther, the memorandum he had made of it at the time. The defendant afterwards delivered the gold watch and chain, purchased pursuant to the conversation aforesaid, to Kate, and paid one year's interest on the sum of $2000 to Mrs. Luther, and after her death paid one year's interest on said sum to the guardian of the plaintiffs. Since then no payments have been made. The Master reported inter alia as follows:"There is no difficulty as to the material facts of this case. Dr. John B. Brooke, the defendant, is the only witness of the conversation between his mother and himself, on the day before her death, as to the provision to be made for the |