Jones, the intestate, invited his widowed and almost destitute sister to come and make his house her home. The plaintiff accepted the invitation and remained with her brother nearly fourteen years. During all that time the brother provided in a suitable manner for his sister and her daughter; and the sister made such returns as were in her power, by rendering herself useful in the family. Neither at the commencement nor in the progress of these mutual acts of kindness, did either party think of such a thing as a contract of hiring; or that any legal obligation existed, or was springing up between them. They were brought and kept together and made useful to each other, by the law of love, and by that alone. Such is the conclusion to which my mind has been irresistibly drawn by a careful examination of all the evidence in the case.
There is some reason to believe that the intestate was under a delusion at the time he made the sealed note. He was careful to express the consideration for making it; and yet he has not mentioned the only consideration which is now relied on; to wit, the services of the plaintiff for the eleven years which had then elapsed. The intestate did not mention services generally, but “ services rendered me during my illness.” This seems to point to the paralytic attack, which the intestate had in 1827, which was two years before the plaintiff came from *153Virginia. Although the intestate never wholly recovered from that shock, he was well enough to be actively engaged in business : and he had no .particular illness of any importance while the plaintiff was in the family, except an attack of inflammatory rheumatism, which lasted three weeks. At this time a man was specially employed to take care of him ; and his mother-in-law was also in attendance night and day. Although the plaintiff undoubtedly bestowed some care on that occasion, it is hardly probable that the intestate meant to point to that as the consideration for an undertaking to pay two thousand dollars.
But if we suppose that the intestate intended to mention services generally as the consideration of the note, the instrument will not prove much. It is of no value as an obligation, for the reason that it was never delivered. And for the same reason, I think it of little or no value as an admission. In point of form, the instrument contained both an express undertaking to pay a sum of money, and an admission that the money was justly due for services rendered. But by carefully retaining the paper in his own possession, the intestate virtually declared that it was neither to bind him as an obligation, nor affect him as an admission. I will not say that such a paper must, under all possible circumstances, be laid entirely out of view. But while it confessedly lias no force as a contract, it cannot be right to give it, under the name of an admission, all the effect of a binding obligation.
What the intestate said to Gawtry at the time the note was made, is no more than is expressed in the note itself. He said “ it was for services rendered.” But he did not say that he was under any legal obligation, expressed or implied, to pay for those services. And it is entirely clear from the other evidence in the case that there was no such obligation. The testimony of Miss Rosette, which is deemed so favorable to the plaintiff, does not show an existing legal duty or indebtedness on the part of the intestate. He did not say that he had ever agreed to pay the plaintiff any thing, nor that her services had been rendered under such circumstances that the law would imply a promise to pay for them. The key to the whole matter will *154be found in his remark, that “ Mrs. Robinson has no means for her future support: she is my sister and I am anxious for her.” And after making an estimate “ he mentioned the sum of two thousand dollars and said”—not that this was a debt which he owed—but, “ she is my sister." That was evidence of a good heart, but not the acknowledgment of a legal obligation. These confessions must not be separated from all the other evidence in the'case; but the whole must be considered together: and then it is clear that instead of regarding himself as a debtor, he was debating in his own mind whether he should not make is gift to his sister. He died without ever having settled that question. He went so far as to sign a covenant to pay he? two thousand dollars ; but he took care to retain the instrument in his own possession, so that it never acquired vitality. He may have doubted his ability to make the gift, or deemed it a questionable act in reference to the, possible claims of creditors, or the wants of his own family. But we need not speculate about what was passing in his mind. It is enough that he never delivered the note.
There is another view of the case which is equally fatal to" the plaintiff’s claim. Let it be granted that the services were performed upon a contract of hiring, or under such circumstances that a promise to pay, quantum, meruit, may be implied. Then the answer to the action is, that the plaintiff has been fully paid, and a good deal more. Her services, taking the highest estimate of her own witnesses, were only worth twelve dollars a month, amounting to $144 a year. And she has been paid for her clothing and the .clothing, board and school bills of her daughter, $250 a year at the least. If the plaintiff chooses to forget the relation of brother and sister, and the feelings of mutual kindness under which both parties acted—if she desires to place herself upon the footing of a servant laboring for wages, she must then consent to have the account between herself and the intestate fairly stated ; and that will show her a debtor in a balance of about fourteen hundred dollars.
But it is said that an account was stated by the intestate, and a balance of $2000 struck in the plaintiff’s favor. That is. *155saying too much. The intestate made an estimate of the value of the plaintiff’s services without at all taking into the account the compensation which she had received. Indeed, it is evident that he did not think of such a tiling as the adjustment of a balance between parties under legal obligations to each other. He not only omitted the whole of one side of the account, but he fixed on a sum for the other side which was a good deal more than his own estimate of what would be right. The sum which he mentioned as a proper compensation to the plaintiff was §10 per month, which for the eleven years that had then elapsed, would amount to only §1320; and yet he settled upon the sum of §2000 for the plaintiff, and said, “ She is my sister.” He was not stating an account, or even one side of an account; but balancing in his own mind what provision, as a matter of bounty, he should make for his sister.
But let it be granted that the intestate admitted not only that the plaintiff’s services were worth §2000, but that a balance of that amount was due to her, still it was nothing more than evidence, which must go for what it is worth. It was not a conclusive admission. And it must not be considered alone, but with the other evidence in the case. And if we look at all the evidence, it is entirely clear that the plaintiff has been fully paid for her services.
We see no ground on which the report can be supported.
Motion granted.