Error to Ottawa; Cross, J. Submitted April 28, 1914. (Docket No. 157.) Decided June 1, 1914.

Jeannette Bolthouse presented her claim against the estate of Jannetje De Spelder, deceased, and appealed to the circuit court from an order disallowing the claim. Judgment for claimant and Elizabeth De Spelder, executrix of said estate, brings error. Affirmed.

Farr & Kolyn (George A. Farr, Jr., of counsel), for appellant.

Peter J. Danhof and Corie C. Coburn, for appellee.

STONE, J. The claimant filed a claim in the probate court of Ottawa county which was as follows:

"Estate of Jannetje De Spelder, Deceased, "To Jeannette Bolthouse, Dr.

"For washing, care and nursing of the deceased Jannetje De Spelder and her husband, Jacobus De Spelder at request of Jannetje De Spelder, from May 1, 1903, to day of death of Jannetje De Spelder, June 17, 1912, at $4.00 per week, nine years, $1,862.00."

The claim was disallowed by the probate court, and an appeal taken to the circuit court for the county of Ottawa. The case was there tried before a jury and resulted in a verdict for the claimant in the sum of $1,600, and costs of suit.

The parents of claimant had been much in the employ of Mrs. De Spelder and family before the birth of claimant. During the first 15 years of claimant's life, she was much of the time in the De Spelder family, and she remained with that family, more or less of the time, until she finished the eighth grade in the public schools. It seems to be undisputed that from the time the claimant was 15 years of age until she was married she remained with Mrs. De Spelder in service, which was consented to by the father of

155 claimant, who testified, without objection, upon the trial, that he gave his consent to her remaining there and to her having her own wages. At the age of about 19 years, the claimant was married, on February 8, 1906, and, with her husband, immediately moved to Grand Rapids, where they stayed until about August 1st. Mrs. De Spelder, apparently, was very much attached to the claimant and desired her to return and live with and assist her in her household affairs, her family consisting of herself and husband, Jacobus De Spelder, then well advanced in years. They lived in the home belonging to Jacobus, but the evidence is very convincing that Mrs. De Spelder had principal charge of the affairs of the family. Money was sent by Mrs. De Spelder to enable claimant and her husband to return from Grand Rapids and enter the home and service of Mrs. De Spelder. After they had been in the De Spelder home a few days, the following arrangement was made between the claimant and Mrs. De Spelder, as testified to by Floris Bolthouse, claimant's husband, under objection and exception, which will be referred to later.

"Q. Do you recollect any conversation between your wife and Mrs. De Spelder with reference to her working there after you moved back here?

"A. Yes, we were here something like a week or two weeks; it was in the evening.

"Q. What was the conversation that you heard? "A. They were in the kitchen, and I was in the dining room. I heard them talking about it. Now she says, 'Jennie, you are back here, and I am glad you are back. She says. 'Now if you stay with me I will make it good with you in my will.' Now, she says: 'Don't worry, Mrs. De Spelder, I will never leave you under no condition.' She says, 'If my husband does want me to go away, I won't go, because I will promise you I will stick to it.'

"Q. Did you consent to her arranging there and working under that arrangement?

"A. Not that minute, but when we got into our

own room she talked to me and asked me what I thought about it, and I says: 'It is up to you. You can do what you want to. What you get out of it is yours.' She remained there about two years. Then we went to Ferrysburg. During the time we lived in Ferrysburg, my wife returned to Grand Haven to work for Mrs. De Spelder about three times a week. I was working there. That was during the winter. I don't remember just the date we left for Ferrysburg. It was somewhere during the first part of December when the snow started to fly. We returned somewhere around February. When we left it was our intention to return in the spring. We left some of our furniture there. * * * We moved back in the spring and remained up to her death. My wife did general housework, nursing, companionship in the evening there. She was called to attend her at night. I don't know just how often, quite often, but I don't know how many times. During that time Mrs. De Spelder ran the house. She did all the business. The old man was weak. His mind was kind of wandering. Sometimes he got lost."

On cross-examination the following occurred:

"Q. You say that you had some talk with your wife and Mrs. De Spelder about what about, after you came from Grand Rapids?

"A. I did not talk with the both of them.

"Q. You heard a conversation between the two? "A. Yes.

"Q. Then you had a talk with your wife after that? "A. Yes.

"Q. Where was this talk?

"A. In our kitchen. No one was present when my wife and I had this talk. We were alone. I told her whatever arrangement she made with her was all right, after she told me what she talked about, I said, 'I heard it,' and, 'It is all right.' I says: 'Everything you get out of it is yours. I won't stop you.' I did not have any further talk with Mrs. De Spelder about this. Mrs. De Spelder knew I would allow my wife to stay there then. I told her I would let my wife stay. I don't remember when, but I told her we would both stay. She did not ask to have me stay. I was not in the deal at all. I was paying rent."

The foregoing testimony was objected to by appellant's counsel on the ground that it was a matter equally within the knowledge of the deceased, and that the witness was an opposite party under the statute. After some discussion, the testimony was allowed to stand, and appellant's counsel excepted to the ruling and subsequently moved to strike out all this testimony, which motion was refused and the ruling duly excepted to. It further appeared upon the trial that Jacobus De Spelder died testate on the 3d day of May, 1910. Upon the trial of the case, the last will and testament of Jacobus De Spelder and the inventory of his estate, as well as the last will and testament of Jannetje De Spelder and the inventory of her estate, were admitted in evidence over the objection and exception of the appellant that the same were irrelevant and immaterial.

A witness, Katie Pals, was permitted to testify upon the subject of the value of the services of the claimant during the nine years that it was claimed she was in the employ of Mrs. De Spelder. This woman was a neighbor who, during this period of time, was frequently in the De Spelder home, her visits varying from a number of times a week to less frequent occasions, during which time she had divers conversations with Mrs. De Spelder and observed the claimant in her work and duties there in the care of the household. It is the contention of appellant that she did not show herself sufficiently acquainted with the services performed by the claimant to be able to testify upon the subject.

Error was also assigned upon the ruling of the court in excluding some testimony offered by the executrix of the estate relative to her conversations with Mrs. De Spelder, after her husband's death, with reference to claimant. These conversations were objected to by claimant's counsel as incompetent and improper. The proposed testimony seems to have

been excluded upon the ground that the same was self-serving and statements of the deceased that she would not be permitted to testify to were she alive. They were in the absence of the claimant, and exception was taken to the ruling of the court. The remaining assignments of error relate to the charge of the court, and will be referred to later. Appellant has brought the case here upon writ of error.

By appropriate assignments of error, counsel for appellant have discussed the questions involved under the following heads:

(1) Errors relating to the admission in evidence of testimony by the husband of claimant as to the conversation he overheard between claimant and decedent with reference to services; he at the time not having assigned to claimant the right to recover for her own services.

(2) Errors relating to the admission in evidence of testimony of services rendered by claimant at the De Spelder home prior to the death of Jacobus De Spelder, husband of decedent.

(3) Errors connected with the admission in evidence of the inventory of decedent's estate and of the will and inventory of her husband's estate.

(4) Error in admitting improper evidence of the witness Katie Pals of the value of claimant's services.

(5) Error in rejecting testimony of the executrix as to conversations with decedent as to the relations between decedent and claimant, and with reference to decedent's physical condition.

(6) Error in the incomplete and ambiguous charge of the court with reference to what the alleged contract claimed by claimant was.

1. It is urged by appellant's counsel that at the time claimant's husband heard the alleged conversation with decedent, to which he testified, no assignment to his wife of her right to her services and earnings had been made, and that he was the real party in interest and the opposite party under the statute; also, that if claimant's husband was not then