CHARLES WIRTH vs. THEKLA KUEHN, executrix.

SHELDON, J. The defendant is the executrix of the will of Max Nold, and this action is brought to recover $1,140 for board alleged to have been furnished by the plaintiff to said Nold and his wife, and various sums of money, amounting to over $1,400, alleged to have been received by Nold from the plaintiff or to have been paid by the plaintiff for his use. The case was tried before a judge of the Superior Court without a jury, the only evidence being an auditor's report, which set forth his findings of fact in detail as to all claims made by the plaintiff.

The defendant asked the judge to rule that upon all the evidence in the case the plaintiff was not entitled to recover for the board claimed or for the money alleged to have been lent or expended, unless for the items enumerated in the fifteenth section of the auditor's report; that if as a fact the defendant's testator received board where he was living, and different sums of money either from the plaintiff or the plaintiff's money, and the plaintiff only consciously expected to be reimbursed for these sums out of the property of the defendant's testator, and by a particular method, namely, through the expected inheritance by the plaintiffs wife at the death of the testator, [Note p51] and never expected to

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be paid or reimbursed from any other source or in any other manner, then the plaintiff could not maintain his action for such items; that upon all the evidence the plaintiff was not entitled to recover any of the items claimed in his declaration; that upon all the evidence in the case it appeared that the plaintiff or the plaintiffs wife advanced or gave certain sums of money at different times to the defendant's testator, and also furnished some board, but with the conscious expectation that it was to be made good out of the property of the testator, and in a particular way, namely, through the inheritance of this property by the plaintiffs wife, and in no other way; and therefore the plaintiff could not recover for any of the items claimed in the declaration.

The judge declined to make any of these rulings; and ruled, at the request of the defendant, that the intention of the plaintiff, which he had without disclosing it to the defendant's testator, with reference to the board and cash furnished or advanced, and the question whether he intended the same as a gift or not, are immaterial, and the evidence of such intention should not be considered, but the intention of the plaintiff must be determined from all the circumstances of the case; and found for the plaintiff in the sum of $979 and some cents. The defendant excepts to the refusal of her requests for rulings.

Without going over the specific findings of the auditor in detail, we think that upon the statements of the report the judge was warranted in finding that the plaintiff furnished to the defendant's testator, the board and money for which he was allowed to recover, not as a gift, but with the expectation that it was to create a liability on the part of Nold for its repayment, and knowing and relying upon the fact that Nold had property more than enough to repay him. And in spite of the statement made by the auditor as to the seventh of the plaintiffs requests for findings, [Note p52] we are of opinion that upon the other facts found

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by the auditor the judge was warranted in finding that Nold did not understand that what he received from the plaintiff was intended as a mere gratuity. No doubt the judge might have made contrary findings, but these were questions of fact upon which the findings made are conclusive. Thurston v. Perry, 130 Mass. 240. And if these facts were found by the judge it could not have been ruled as matter of law that the plaintiffs right to recover from Nold in his lifetime, or from the defendant as Nold's executrix after his decease, was taken away by the fact that the plaintiff expected that his actual reimbursement would come through his wife's inheritance from Nold, and accordingly did not in fact look forward to obtaining reimbursement from any other source. As long as the legal right to reimbursement existed, we do not think that the plaintiffs right could be affected by the fact that he did not expect to stand upon this legal right, but was willing to refrain from enforcing it for the increase of his wife's expected, inheritance. Baxter v. Gray, 4 Scott N. R. 374. These parties did not become members of one family, as in Kirchgassner v. Rodick, 170 Mass. 543, Livingston v. Hammond, 162 Mass. 375, and Spring v. Hulett, 104 Mass. 591. Nor did it appear, as in Livingston v. Hammond, that the plaintiff began to assist Nold merely from motives of charity or of family affection. The beginning of their relations was put upon a distinctly pecuniary basis, when it was agreed that Nold should at his own expense construct an addition to the plaintiff's house and be allowed to occupy this addition for life without further charge.

We cannot doubt that from the specific findings of fact made by the auditor the judge had the right to draw inferences of fact contrary to those drawn by him. Livingston v. Hammond, ubi supra. Peaslee v. Boss, 143 Mass. 275. Emerson v. Patch, 129 Mass. 299.

Exceptions overruled.

E. N. Hill, for the defendant.

G. W. Anderson, (E. H. Ruby with him,) for the plaintiff.