The trial court based its conclusion to the effect that the payment of $5,000 discharged the contract of February, 1916, upon the case of Heber v. Estate of Heber, 139 Wis. 472, 121 N. W. 328. In that case it is said:

“In the absence of a contract whereby a decedent agreed to pay his son for his services, a conveyance of land by the father to the son would be considered a gift; but the existence of a contract, together with the fact that at the time of the conveyance the decedent was largely in debt for such services, and the absence of evidence of payments otherwise made on such indebtedness, furnishes evidence sufficient to support a finding offsetting the value of the land against the son’s services.”

We are not disposed to disturb the rule of the Eleber Case, but we are of the opinion that it does not apply to the facts in this case. In that case it appears that the son had worked for the father for seventeen years; that about three years before the death of the father he and his wife conveyed to the son forty acres of land which was of the fair value .of $2,200; that after the death of the' decedent the son appropriated money, sold grain, and appropriated other assets to his own use; and it was held that the. value of the farm and the assets appropriated should be offset against the son’s claim for services. The determination in that case did not rest' entirely upon the mere fact that the father was indebted to the son and conveyed certain property to him. The court said;

“Indeed, the circumstances tending to show that the father did not intend that the son should recover wages, and retain the. forty-acre tract without accounting for its value, are *622quite persuasive. He had six other children, one of them a girl forty-three years of age, who was not strong in mind or body and who had always lived at home. To her he left a legacy of $1,000. The other children for the most part lived and worked at home until they became of age. To each of them he bequeathed $500. There is little doubt that the testator intended that the claimant should have all his property after the legacies bequeathed to the other children were paid. It seems equally clear that he intended that such legacies should be paid. The inventory value of decedent’s property, plus the value of. some property not included therein, was but $5,265.68. The sum of $200 was' set apart for a monument. The amount of the bill presented against the estate by the claimant was $7,581. The amount allowed claimant for his services and for the rental value of 'the forty-acre tract was $2,7.00. On the basis of this allowance, which it is claimed should be at least. $1,000 more, the estate would fall over $1,100 short of paying the specific legacies provided for in the will, without taking into account funeral expenses or costs of administration. We think these facts and circumstances furnished ample warrant for the decisions of the county court and of the circuit court in making the offset.”

In this case the evidence shows that Mark, when notified • that his father had deposited $5,000 in the bank, refused to accept it, claiming that -his share was greater than that. As already stated, the deceased left an estate of $17,000. Mark’s claim was that the $5,000 was given to him upon the same basis as the $6,000 interest in the farm had been given to Alvin and Paul and $4,400 had been given to Dave. After his refusal to accept that monej'- he saw his father, and his father said to him:

“You take that $5,000, and when I die I will give you some more; I will pay you all you got coming. Take that money and I will see to it that you get paid for your work, every bit of it, when I die. I can’t do any better now, but I will leave you some more when I die.”

Evidence to the same effect was given by the cashier of the bank in which the $5,000 was deposited. After having *623been thus assured by his father, the plaintiff, two or three months after the deposit was made, accepted the $5,000. There is no evidence to contradict the testimony referred to and we think only one inference can be drawn from it, taken in connection with the surrounding circumstances, and that is that the father, did not intend to apply it on his indebtedness to Mark for the work covered by the contract of February, 1916, and that the $5,000 was given by the father and accepted by the son as a gift. The father well knew of the contract of February, 1916. It was executed for the very purpose of securing Mark for services which he had performed over and above those of the other children. The will made contemporaneously with the contract was revoked, leaving the contract in full effect. This did not happen until after the payment of the $5,000. There are other circumstances which tend to support this view, but we think the facts stated are conclusive, and that a finding that the $5,000 was intended to discharge the liability under the contract of February, 1916, is against the great weight and clear preponderance of the evidence. Evidence of statements made by the deceased after the $5,000 was paid to Mark cannot change the contract relations existing between the deceased and Mark. Mark is not claiming under the will but under the contract. Whether or not the contract was discharged by the payment must be determined upon the facts as they existed at the time the $5,000 was accepted. Upon that point subsequent ex parte declarations are not material.

By the Court. — Judgment appealed from is reversed, and cause remanded to the county court of Shawano county with directions to allow the claim.