In re Sunderlin's Estate , 81 N.Y. Sup. Ct. 219 ( 1893 )

HERRICK, J.

From an examination of the evidence in this case, I can see no sufficient reason to reverse the conclusions at which the surrogate arrived in regard to the alleged agreement between the deceased and Sarah C. Thumb. The surrogate has found that the deceased boarded with Sarah 0. Thumb for 30 years; that the value of board at the time in that locality was four dollars per week; and that she has never received any payment for the board and lodging so furnished. This, I think, should have been allowed. It is true that no specific claim for that amount was set forth in the written claim, which was devoted almost entirely to the statement of the alleged agreement by which she was to have all the property of the deceased that was left at the time of her death. Still, there is a request for such other relief as to the court may appear equitable in the premises. This was an accounting before the surrogate, and the person presenting this claim was one of the administrators of the estate. There was no order of reference, as is ordinarily the case where a claim against an estate is contested, where the referee would only be at liberty to determine upon the exact claim presented. It seems to me that the court here might have a little more latitude, under the claim made, than a referee appointed under the statute would. There has been no surprise. The time of the decedent’s board and lodging is not controverted, and the value of the board and lodging per week was admitted on the hearing. The decree, I think, should therefore be modified, allowing and directing to be paid to Sarah O. Thumb the sum of $120 in payment for such board and lodging, and that the decree, as so modified, should be affirmed, with costs to the appellant to be paid out of the estate. All concur.