In re the Judicial Settlement of the Accounts of Dusenberry

Majority

p. 208

In the Matter of the Judicial Settlement of the Accounts of Josephine C. Dusenberry et al., as Administrators of Jonah C. Brundage, Deceased.

(Surrogate’s Court, Westchester County,

Filed December, 1894.)

Headnote

1. Services — Members of family.

In the absence of a contract, express or implied, to pay for services rendered by a child, no claim therefor can be made, as it will be presumed that such services were gratuitous.

2. Same.

Declarations by a father, made during the absence of the daughter, and not communicated to her, that she “ ought to be paid,” and that “ she should be paid for what she did for him,” are not sufficient to overcome such presumption.

Judicial settlement of the accounts of administrators.

The intestate was a farmer living in the town of Rye. He lost his wife about 1879 and remained a widower until his death, which occurred about April 1, 1892, at an advanced age. He left him surviving two daughters and a son, the administratrix and Rose J. Lockwood and Frank S. Brundage, and four grandchildren, the children of deceased daughters. The administratrix, with her husband, who was in feeble health, went to live in the family of the intestate about 1883, the hus

p. 209

band, aiding in the farm work to some extent, and she assisting in the housework and pursuing her trade of a dressmaker. After about two and a half years the husband died, leaving no issue. The wife continued to live with the intestate until his •death, doing housework and following her trade as she had leisure. She now presents a claim for services as housekeeper and as nurse, amounting to $850, which is disputed by some of the next of kin. The account filed shows the personal estate to be about $450.

Platt & Thompson, for claimant; James B. Lockwood, for next of kin.

The only matter in controversy in this case is in regard to the claim made by the administratrix for services, etc., rendered to the deceased during his lifetime. There is no evidence whatever of any expressed or implied contract between the deceased and the claimant as to compensation for her services; and in the absence of such contract, express or by fail-implication, the authorities are abundant to the effect that she cannot recover, because of the relation between parent and child, the presumption being that such services were gratuitous, and such as were due from the child to the parent. Williams v. Hutchinson, 3 N. Y. 312 ; Marion v. Farnan, 68 Hun, 383 ; Ulrich v. Arnold, 120 Pa. St. 170 . Other cases might be cited, but these are deemed sufficient.

The only proof on which it is sought to base the inference that there was a contract is that the deceased said to others: ‘ She ought to be paid.” “ She should be paid for what she did for him.” In no instance was the claimant present when these declarations were made, nor were they communicated to her, and they are not evidence of either an express contract or of a mutual understanding which would take the matter out of the well-settled rule. The claim is rejected.

Ordered accordingly.

Cases cited

Williams v. Hutchinson 3 N. Y. 312 N.Y. p. 209