Citation Numbers: 93 N.Y. Sup. Ct. 325, 67 N.Y. St. Rep. 207
Judges: Hardin, Martin, Mbrwin
Filed Date: 4/15/1895
Status: Precedential
Modified Date: 1/13/2023
Betsey Everts died on the 16th of September, 1891, leaving a will bearing date November 4,1889, in which, after providing for the payment of debts and expenses and devising to her son Henry and his wife a farm for life with remainder over to their daughter, and giving to her daughter, A. Elavilla Everts, the sum of $1,600, which is stated to have been already advanced to her, she then gave to her daughters, Mary E. Blair and Olarisse M. Harrison, each the sum of $1,600. The residuary legatees were the four children above named of the testatrix. The personal estate, according to the account of the executors, amounted to about the sum of $3,500, and, after the payment of debts and expenses, there was, according to the decree appealed from, the sum $3,022.16, applicable toward the payment of the legacies to Mrs. Blair and Mrs. Harrison, and one-half thereof was distributed to each.
Hpon the accounting Mrs. Harrison claimed that, in addition to the amount charged in the account, the executors should be charged with a note of $1,000, made by Mi’s- Jackson, and a United States bond for $500. She also objected to the allowance to the executors of an item in the account of $100 paid to A. E. Everts for care of her mother, and to the allowance of an individual claim of the executrix, Mrs. Blair, of $124 for care and attendance upon her mother for 124 days, from May 15 to September 16, 1891. The surrogate declined to charge the executors with either of the additional items of assets and allowed each of the claims for care. The correctness of the decision of the surrogate as to each of these four items is challenged upon the appeal.
The burden was on the contestant of impeaching the payment of the claim of A. Flavilla Everts. (Boughton v. Flint, 74 N. Y. 477; Metzger v. Metzger, 1 Bradf. 265 ; Matter of Accounting of Frazer, 92 N. Y. 239.) It was shown that the deceased lived with her daughter Flavilla, but we have no right, according to the case of Ulrich v. Ulrich (136 N. Y. 120), to presume as matter of law that there was no agreement that Flavilla should be paid for her services. The burden of proof being on the appellant, we find no good reason for disturbing the conclusion of the surrogate that the claim had not been shown to be invalid.
The individual claim of the executrix stands on a different basis. She is bound to establish her claim by legal evidence. (Code, § 2731; Kyle v. Kyle, 67 N. Y. 408.) The testatrix lived with her daughter
There is no evidence of any agreement between Mrs. Blair and her mother that Mrs. Blair should be paid for her services, or that there was any mutual understanding to that effect. The mere fact that one person labors for another is ordinarily sufficient to sustain the finding of an implied contract to pay therefor. But this rule does not apply when the services are rendered between members of the same family. In Williams v. Hutchinson (3 N. Y. 312, 318), it is said : “We find other motives than the desire of gain which may prompt the exchange of mutual benefits between them, and hence, no right of action will accrue to either party, although the services
The general rule is not disputed by the counsel for the respondents, but the claim is that it is not applicable here because Mrs. Blair went from her own home to attend upon her mother, and, therefore, should not be deemed to be a member of the same family within tlie rule. Reference is made to the case of Moore v. Moore (21 How. Pr. 211), where a son who did not live with the testator made a claim for professional services as a physician, and at page 223 it is said : “ He places his right to recover on showing that he rendered meritorious and valuable services which were accepted by the testator. Ordinarily, from the fact of rendition and acceptance of services beneficent in their nature, the law will imply a promise to pay what the services are reasonably worth. This implication may not be repelled wholly by the fact that the service is rendered to a parent by a son of full age; but the legal presumption of an obligation to pay is less strong when the relation of parent and child exists, than in the case of dealing between persons not bound to each other. If, to the relationship, lie added other circumstances tending to show, as a matter of fact, that the services were gratuitously rendered, and without any expectation at the time on either side that payment was to he made, the law will not imply a contract for compensation.” In Markey v. Brewster (10 Hun, 16) there was a promise to pay. In Matter of Wells (4 N. Y. St. Repr. 878), a granddaughter, at the express request of the testator, left her own home and performed services for the testator. The other cases cited do not seem to reach the present case.
In "Wood’s Master and Servant (§ 72) the rule is stated to be that in all cases where compensation is claimed for services rendered for near relatives, as a father, brother, grandfather, etc., the law will not imply a promise, and no recovery can be had unless an express contract or circumstances equivalent thereto is shown.” In 2 Parsons on Contracts (8th ed.), 49, it is said : “ In general, wherever service is rendered and received, a contract of hiring, or an obligation to pay, will be presumed. But it is said not to be so where the service is ren:
It is at least doubtful whether under the circumstances of this case Mrs. Blair, as to her claim, is in a better position than a member of the family would be. The performance of a filial duty should not be jfiaced on a pecuniary basis. Nor should it be said that a child, though living away from home, if he performs a service for his sick parent, should be entitled, as matter of law, to compensation as upon the obligation of a contract.
But at most there was only the presumption of a promise to pay, and the question then is whether upon the circumstances here shown, including the absence of any promise, the presumption is overthrown (Williams v. Finch, 2 Barb. 208). All of the children seemed to have aided in caring for the mother. The mother expected that her property would be equally7 divided among her children. Still she had given her daughter Flavilla, with whom she lived, and who had the main burden of her sickness, an additional $500. She gave the daughter of Mrs. Blair $1,000, and this gift Mrs. Blair was active in having consummated during the sickness of her mother. This was indirectly for Mrs. Blair’s benefit, and was a large portion of the estate. It is not probable that the mother expected to further compensate Mrs. Blair for her services. If she had, it would naturally have been so distinctly understood.
The case is here-upon the facts (Code, § 2586), and we are of the opinion that the evidence does not justify the allowance of the claim of Mrs. Blair.
Decree modified as stated in the opinion, and as modified affirmed without costs of this appeal to either party.