The evidence must disclose on the part of the promisor an intent to assume a legal obligation capable of being enforced against him. Oliver v. Gardner, 192 Ky. 89, 232 S.W. 418. The evidence further must establish that the person rendering the services expected compensation for the services. Marshall v. Ireland, 228 Ky. 354, 15 S.W.2d 289. It is true that where the parties to the alleged contract are not related by blood or marriage there is no presumption that the services were gratuitous, Sword v. Moore's Adm'r, 303 Ky. 507, 198 S.W.2d 215, but on the other hand the lack of such relationship does not give rise to any presumption that the services were not gratuitous. With the foregoing principles in mind we shall review the evidence (saving for later the evidence on the dog question).
Even though the plaintiff is not a blood relation of the decedent, she is the wife of the decedent's nephew, and the testimony clearly indicates she is a member of the family group. Thus, the rule found in McWhorter v. Pitman's Adm'r, 196 Ky. 618, 245 S.W. 133 (1922); Sword v. Moore's Adm'r, 303 Ky. 507, 198 S.W.2d 215 (1946); and Allen v. Smith, 208 Ky. 207, 270 S.W. 782 (1925), is equally applicable. Absent an express contract, a member of the family may recover for services rendered a decedent only where the services are of extraordinary nature or where there is an expectation of payment and a clear indication on the part of the decedent of intention to pay.
See Civil Code of Practice, section 606, subsec. 2; Sword v. Moore's Adm'r., 303 Ky. 507, 198 S.W.2d 215; Moore v. Terry, supra. Although it appears that appellants interrogated appellees' witnesses about these same matters on cross-examination, we have held that such questioning does not amount to a waiver of prior objections. Taylor v. Taylor, 175 Ky. 510, 194 S.W. 551; Saylor v. Saylor, 151 Ky. 694, 152 S.W. 763. The Chancellor erred when he refused to sustain appellants' objection to the foregoing testimony.