Givens v. Whitney

Headnote

Will — construction of provision making bequests to persons “ customarily employed as part of my household in my house ”— electrician employed on testator's country estate not within such provision.

Givens v. Whitney, 198 App. Div. 970 , reversed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered October 3, 1921, affirming a judgment in favor of plaintiff entered upon a decision of the court at a Trial Term without a jury. Testator by his will provided: “ To each person not hereinbefore named who, at the time of my death shall be in my service and shall then be customarily employed as part of my household in my house in New York city or in my country house in Ulster county, New York, the sum of three thousand dollars, if he or she shall have been in my service for two years, with the further sum of two hundred dollars for each year or portion of a year in excess of two years, and the sum of one thousand dollars if he or she shall have been in my service for less than two years.” Plaintiff had been employed upon the country estate of testator for six years prior to his death as electrician. He lived in a cottage upon the estate, had charge of the electrical equipment at the power house and took care of the electrical equipment at the mansion, including a switchboard, distribution box, an ice machine, batteries for the bells, fire alarms, vacuum cleaner, the night watchman’s clock, electric lights, telephones, bells, etc. During the decedent’s last illness the plaintiff co-operated in furnishing current for a warming pad. The plaintiff also took care of the electrical equipment in the garage, stable, boarding house and in the cottages that were equipped with electricity. The trial court held that plaintiff was employed as part of testator’s household within the meaning of the will.