In re the Estate of Strickland , 5 N.Y.S. 854 ( 1889 )

The Surrogate.

The claimant is the father and administrator of the decedent — Dan A. Strickland.

The first claim arises out of certain mortgages given by the father, which it is alleged were really for the benefit of the son.

In 1873 .the son, then having barely attained his majority, desired to purchase a farm in Otto in this county, called “ The Parkinson Farm.” To accomplish this the father gave a mortgage on his own farm to one Sally French for two thousand dollars, the proceeds of which were paid to the son. In 1879, Dan A., who was paying the interest on this mortgage at the rate of seven per centum, wished another one given at a lower rate of interest. The father accordingly mortgaged his farm to the Mutual Life Insurance Company for two thousand five hundred dollars, and out of this the son used $2,150 in paying the preceding mortgage and for other purposes, while the father had the remaining three hundred and fifty dollars. The interest on this mortgage was paid by decedent until about the time of his death in 1882, and the mortgage then remained a lien on the farm of the father, except that Dan A. paid one hundred dollars of the principal sum of this encumbrance.

The evidence establishing this is uncontradicted, and clearly shows these loans were for the benefit of the intestate. The contestants’ objection that this claim is invalid by reason of the running of the Statute of Limitations is hardly tenable.

The decedent recognized and kept alive the original debt by paying interest on it from time to time. It was not necessary that these payments be made directly to Strickland as long as they were in recognition of the debt itself. But even if the first loan had become tainted with this defence, it was cured and the debt revived by giving the second mortgage and paying the avails to the-son.

The only evidence militating against this demand is that the books of the decedent show a final settlement between father and son in 1879, and after that time the intestate charges the payment of interest made by him to his father; but the difficulty with this lies in the fact that all through Dan’s books there is no allusion to the existence of this mortgage or his liability under it although the testimony irresistibly establishes it. So that the inference is very strong that this charge, making a distinctive, unusual one by itself, was not embraced within this settlement and may not have been deemed necessary as long as the mortgage existed as a lien against the father. The payments of interest made by the son and charged to the father would tend to prevent any mistakes arising as to the person actually making them.

On the death of the son therefore there was due claimant the sum of $2,050, less the $1,600, which he credits to him, leaving due to the father $450 and interest thereon since December, 1881.

The next claim of the father is for services rendered by him in taking care of stock for the son, and furnishing him with fodder and grain for the same, and in boarding him and his men.

The intestate was a stockdealer, buying cattle, hogs and horses, bringing them to his father’s farm, and disposing of them from there, or collecting them preparatory to driving them to the cities for market. He carried on this business extensively from his earliest manhood until his. death, and the father now presents a claim aggregating nearly two thousand dollars for the assistance he then rendered his boy. The claim does not impress me favorably. There is no proof that any of the items now embraced in this claim were ever presented to the intestate. There is no allusion to them on the books of the son; the father himself had no account or memoranda showing any of these transactions but made up his charges solely from recollection; at least two settlements were had between the father and son and a note was given as evidence of indebtedness from the son, and money was often paid by one to the other in payment of claims and accounts and yet during these ten years there is nothing indicating that the father was making up charges which he expected the son to pay. Claims of this character presented after the death of one of the parties are always viewed with suspicion. Kearney v. McKeon, 85 N. Y. 139. No principle of law is better settled than that the foundation for a recovery in such cases must be an express agreement or a mutual expectation that payment is to be made for the services rendered, and many of the circumstances so often alluded to by the courts in rejecting claims similar to Mr. Strickland’s, exist quite pointedly in this case. Williams v. Hutchinson, 3 N. Y. 312. Robinson v. Cushman, 2 Denio 149; Shirley v. Vail, 38 How. 406; Roblee v. Gallentine, 19 W. Dig. 153, 154. The claim must be disallowed.

A decree will be entered establishing the first claim at the sum of four hundred and fifty dollars and interest thereon since December 6, 1881.