A person voluntarily furnishing support to an orphan child, and having no contract with its deceased parent nor with the executor for its support, cannot recover of the executor for the same. Where one party is an executor not electing to testify, ordinarily the adverse party will not be permitted to testify to matters to which the deceased, if living, might testify.
ALLEN, J.
Without a contract, express or to be inferred, the plaintiff cannot recover. Kelley v. Davis, 49 N.H. 187, 189, Bundy v. Hyde, 50 N. N. 116; Cook v. Bennett, 51 N.H. 85, 93.
Without the consent of the defendant, the plaintiff could not be permitted to testify, except upon matters to which the testatrix, if living, could not testify. Chandler v. Davis, 47 N.H. 462; Harvey v. Hilliard, 47 N.H. 551; Fosgate v. Thompson, 54 N.H. 455; Hoit v. Russell 56 N.H. 559. It does not appear that the plaintiff offered to testify to matters arising subsequent to the death of the testatrix; and no injustice appearing to be done without the plaintiff's testimony, there was no error in its exclusion.
Judgment on the report for the defendant.
CLARK, J., did not sit: the others concurred.