Wells vs. Perkins. services were rendered in pursuance of the agreement, the plaintiff was entitled to recover what they were reasonably worth. But no proper distinction or discrimination was made by the learned judge between the case of an express and that of an implied contract; and the jury might well have supposed from the charge that a contract or promise to pay might be inferred in this as in ordinary cases. In other words, the charge seems to be fairly open to the objection "of confounding circumstances from which a contract might be implied, with circumstantial evidence of an express contract." Tyler v. Burrington, supra. The rule has often been announced by this court, that the law excludes an implied contract to pay in this class of cases, and therefore the plaintiff could only recover upon an express contract, which, according to the rule in Tyler v. Burrington, "might be established by direct and positive evidence, or by circumstantial evidence equivalent to direct and positive." Consequently, it was incumbent upon the plaintiff to prove an express contract to pay as alleged in the complaint. And this contract he was bound to "establish by direct and positive evidence, or by circumstantial evidence equivalent to direct and positive." It therefore appears to us that the court below did not point out to the jury, as it should have done, the real distinction above indicated, but left them to infer from circumstances a contract to pay, as in an ordinary case between strangers, though the evidence might have failed to satisfy them that an express contract was actually made. It is, however, claimed by the learned counsel for the plaintiff, that no proper exception was taken to the charge, so as to raise the question we are considering. It appears that, after verdict, at the same term of court, the defendant moved on the minutes of the judge for a new trial, on this ground, among others, that the court erred in its charge to the jury, wherein it defined the burden of proof, and the amount of proof necessary to enable the plaintiff to recover. Thus the motion Wells vs. Perkins. pointed out the particular part of the charge upon which error is assigned; and the defendant excepted to the order denying his motion. It seems to us that this must be considered a sufficient exception, under the circumstances, to that part of the charge, to enable this court to review it. The statute allows a party, at any time before the close of the term of court at which the action was tried, to except to any part of the charge (ch. 194, Laws of 1874); and this provision renders the exception in the present case sufficient, and as available as though taken at the time the charge was given. Nisbet v. Gill, 38 Wis., 657. It follows from these views, that the judgment of the circuit court must be reversed, and a new trial awarded. LYON, J. I cannot agree with my brothers that the alleged erroneous rule of evidence, laid down in the charge of the learned circuit judge, should work a reversal of the judgment. I place my dissent upon the special circumstances of the case. The plaintiff, two of his sisters and his brother-in-law, testified to a conversation between the parties, alleged to have taken place immediately after the plaintiff became of age. The testimony of each is, in substance, that the plaintiff then told the defendant he intended to leave home and work for other parties; whereupon the defendant replied, "I want you to stay, and I will pay you more than any one else. I can rely on you to attend to my business." The defendant testified that he never had any such conversation with the plaintiff, and that he never agreed to pay him wages. This is all the direct evidence on the subject, and the circumstantial evidence bearing upon it is of but little importance. The jury could not have found that there was a preponderance of proof of an agreement by the defendant to pay the plaintiff wages, unless they believed the plaintiff and his three witnesses who testified to such agreement, and disbelieved the defendant, who denied it. Hence, it is a verity in the case, Wells vs. Perkins. made so by the verdict, that the former testified truly and the latter did not. The testimony of the accredited witnesses is direct and positive proof of such agreement. It seems to me, therefore, that had the judge given the correct rule of evidence had he told the jury that the alleged agreement "must be established by direct and positive evidence, or by circumstantial evidence equivalent thereto," the result must necessarily have been the same. Finding that the plaintiff and his witnesses testified truly, they necessarily found not only the preponderance of evidence required by the charge to establish the agreement, but the direct and positive proof thereof required by the cases cited by my brother COLE. If these views are correct, it necessarily follows that the defendant could not have been prejudiced by the erroneous instruction, and hence that the error is not ground for reversing the judgment. RYAN, C. J. I entirely concur in all that is said in the opinion of Mr. Justice COLE. The charge of the court below makes no distinction between the evidence of an express contract of employment, required between strangers, and between a member of a family and its head. In cases of the latter kind, I think that the distinction ought always to be pointed out; that the jury ought to be expressly charged that a recovery cannot be had upon an implied contract; should be cautioned against the great risk of abuse, and instructed not to find an express contract of employment, except upon clear and positive testimony. When cases are remitted by this court for new trial, great caution ought generally to be used here in commenting upon the weight or credibility of evidence, in a manner that might go to influence the minds of jurors. And I think it unfortunate that Mr. Justice LYON felt it necessary to express such strong views of the evidence in the court below, and of the weight given to it by the jury. I therefore think it right to Estate of Kirkendall: Cramer's Appeal. say that the majority of the court do not concur in the views. expressed upon the subject in his dissenting opinion. By the Court.-Judgment reversed, and a new trial awarded. ESTATE OF KIRKENDALL: CRAMER'S APPEAL. ESTATES OF DECEDENTS. (1-3) Descent of ancestral real estate of intestate. (4) Distribution of intestate personalty. (5) Costs of litigation between claimants to distribution. 1. Subds. 7 and 8, sec. 1, ch. 92, R. S. (construed in Perkins v. Simonds, 28 Wis., 90), have no application to the case of a minor who, not having married, dies intestate, leaving estate inherited from a parent who left no other issue. 2. In that provision of sec. 4 of said ch. 92, which declares that "kindred of the half blood shall inherit equally with those of the whole blood in the same degree, unless the inheritance came to the intestate by descent, devise or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor shall be excluded from such inheritance," the words "unless," etc., do not establish a general rule of inheritance, but merely a particular exception to the right of children of the half blood defined in the previous clause; and the person who is next of kin of the full blood of the intestate takes the inheritance, though not of the blood of the ancestor from whom it came to such intestate. 3. Thus, an inheritance which came to the intestate from his mother, would go to his paternal grandmother, rather than to his maternal uncles; degrees of kindred being computed, under the statute, by the rules of the civil law. 4. The exception thus created by sec. 4 as to the descent of ancestral estate is not applicable to the distribution of intestate personalty (except heirlooms and the like); and the statutory provision (R. S., ch. 99, sec. 1) which requires personal estate, remaining after administration, to be distributed to the same persons, etc., as prescribed for the descent of realty, must be construed as referring to the general rule of the statute of descents, and requiring such distribution to be made to the next of kin, Estate of Kirkendall: Cramer's Appeal. whether of the whole or half blood, without regard to the source from which the estate came. 5. Where opposing claimants of personal estate, subject to distribution after administration, interplead each other, the administrator not being a party to the litigation, costs will not be allowed out of the fund in dispute. APPEAL from the Circuit Court for Walworth County. Mary Jane Kirkendall having died in said county August 8, 1872, under age and without having been married, and her estate having been fully administered, the probate court, in April, 1875, made an order awarding the whole of her personal property, one-half of which came to her from her deceased mother, to Mary F. Kirkendall, her paternal grandmother. From this decision, P. D. Cramer and his four brothers, who were brothers of said intestate's mother, and claimed that part of the estate which descended from the mother, appealed to the circuit court; and that court having affirmed the decision of the probate court, they appealed from its judgment to this court. The cause was submitted on the briefs of A. D. Thomas for the appellant, and H. F. Smith for the respondent. For the appellant it was argued, 1. That the words in the latter part of sec. 4, ch. 92, R. S. ("unless the inheritance come to the intestate by descent, devise or gift of some one of his ancestors, in which case all those who are not of the blood of such ancestor, shall be excluded from such inheritance"), are not limited in their application to kindred of the half blood, but modify all the prior provisions of the statute. The basis of our statute of descents is the statute of distribution of Charles II and James II. Reeve on Descents, 26. But most of the states have modified their statutes so far as to keep ancestral property in the line of blood of the ancestor from whom the inheritance came, and this modification has been consistent with that actual bond of union called kinship, which was the basis of ancient society. Maine's Early Histoof Institutions, 64–66; Maine's Ancient Law (5th ed.), 146 ry |