Majority
p. 105DARLING v. HALSEY. N. Y. Supreme Court, First Department ; Chambers, December, 1876.
Headnote
Execütoks amd Admimistbatobs.—Costs.Executors under a will which directed them to compensate plaintiff for care of the testatrix, resisted the bill rendered by plaintiff therefor, and, the whole bill having been allowed by the referee : Held, that plaintiff was entitled to costs and an allowance.[1]
Motion for confirmation of referee’s report and for costs.
p. 106
Augusta Berwick lived with and was taken care of by Louisa A. Darling for some time before her death. In her will, after directing the payment of her debts, she requested that the kind friends with whom she was living should be well rewarded for their care of her, but did not direct any certain amount to be paid. After her death, the plaintiff presented a bill for the care, &c., of the decedent to Lawrence W. Halsey, the executor of the will. He did not at first dispute the bill; but after delaying to pay it for several months, finally, by advice of counsel, insisted on a reference. It was accordingly referred, and the referee reported in favor of the plaintiff for the full amount of her claim.
S. G. Courtney, for the motion.
Miller, Peet & Opdyke, opposed.
In this matter the demand was resisted, I think, unreasonably. The claims of the plaintiff on the estate were recognized by the testatrix and referred to in her will, as stated on the argument. This incident withdraws this case from the general rule applicable to similar proceedings, and warrants an award of costs and an allowance to be paid out of the estate. The defendants could have by proper inquiry established, doubtless, the amount of the claim, which alone was disputed, if indeed anything was in controversy. The claim was not gainsaid by any proof, and the plaintiff should not be subjected to the expense of proving her rights. Costs and an allowance of $25 granted.
Ordered accordingly.