Robinson v. Raynor

The validity of the claim of the appellant, which was allowed by the surrogate, depends upon the question whether the appellant rendered services for his father in his life time, in pursuance of a mutual understanding between him and his father, that he was to be compensated for such services by á devise of the homestead farm, ór other provision by will.

Where services are rendered in pursuance of a mutual understanding between parties, that compensation for them shall be made by will, and the party receiving the services dies without making the expected compensation, the party rendering the services is entitled to compensation out of the estate of the deceased, as a creditor, for the value of the services. An express agreement need not be shown, although if the services are gratuitously rendered, or rendered with the expectation merely, by the person rendering them, that they will be compensated by will, without any mutual understanding, express or implied, between the parties to that effect, they will not constitute a valid claim. ' It is not material whether the failure to make compensation, (where there was

In the present case, there is no dispute that services to some extent were rendered by the claimant to the intestate, and that nb compensation for them was made by will. The only questions to be decided, therefore, are, whether there was an agreement or understanding between the claimant and the intestate, that compensation of any kind should be made for those, services; whether compensation was in fact made, otherwise than by will; and the value of the services.

These are questions of fact only, which in ordinary cases' would not be subject to review in this court; but in most, if not in all cases of appeals from the decisions of surrogates, the whole case is to be examined by the appellate court, as well upon the facts as upon the law, so far as questions are presented by the appeal, and this rule applies as well to the court of appeals, as to the Supreme Court. (Schench v. Dart, 22 N. Y. Rep. 420 ; Caujolle v. Ferrie, 23 id. 90; Moore v. Moore, 21 How. Pr. R. 211.)

A careful examination of the evidence, has convinced me that the surrogate arrived at correct conclusions upon these questions, and that his decree should not have been reversed. In giving the reasons for this opinion, I shall not attempt to review the testimony in detail, but will limit myself to a statement of its general features, with brief references to the' most essential points.

The intestate, the father of the appellant, appears to have been the owner of somewhat extensive tracts of land, of a poor quality, generally, in Suffolk county, upon Long Island. What was called the homestead, where he resided during the earlier portion of his life, was composed of some four or five hundred acres of land covered with wood., excepting about

The evidence of an understanding between the appellant and his father, that the former was to be compensated for this care of his mother and his attention to his father’s business, by a devise of the homestead, is very strong. David Eohinson, one of the appellant’s sons, says, “I know about my father’s doing business for my grandfather; he was often called upon and attended to it in preference to every thing else; whenever the old gentleman called he went; my grandfather often talked to me, and told me to take care of things for it would soon all be father’s. I intend to give it to your father, and it will eventually be your’s and your brother’s. I have heard him say, father, when he had the farm, would have enough to pay him for his work he had done for him; services he had performed.” Another son says, “I had conversation with my grandfather about working there a great many times; he never paid me; he said my father would have the place for the labor he was performing for them; told me that a great many times; told me a great many times that he had willed it to my father; told me that he would certainly have the place.” Another son says, “I have talked with my grandfather about this work and the pay for it. He told me about the last time I saw him before he died, he should give father the home place.” One of the daughters says, “I have heard grandfather say, time and again, he would pay us for all what we had done; that he would give father the home place from the south end to the Teconic river ; and the meadow.” Another daughter says, “He said we should all be paid for what we had done; he should give us the home place and the meadow.”

The appellant testifies that-his father “cropped them [lots which he had manured] until he had cropped them all out, and then gave it [the farm] up to me, and told me if I would

Nathan Raynor testified that he had seen J onathan and his children at the old lady’s cutting wood; that he hired $150 of the old man; that Jonathan wrote the note and attended to the business; that the old man was not competent to write himself, further than to write his name. Silas Carter stated that J onathan used to do considerable business for his father; knew him to travel about with the old man, had known him write notes, &c.

Joel Robinson (whether a relative of the parties or not does not appear) testified as follows: “I can’t say how many wills I have written for the old man, three or four. Wrote the' first one ten or fifteen years ago. In all those wills he gave the homestead farm do Jonathan; I.remember seeing a will in his possession in your [the contestant’s counsel’s] handwriting that gave the homestead farm to Jonathan. I wrote the last will not over three ór four years before his death. I had his last will in keeping; he came for it not a great while before he died; 'four or five or six months, can’t say how long; he destroyed it in my presence, tore his name off. He said it was very likely he should call again, and want another one wrote; if things went to suit him he should call again. I have heard him always say he meant Jonathan should have the homestead; this was when he came to have writing done; he said he had always willed it to him, and he meant he should have it.”

There is some evidence, mainly of declarations of the intes

All the testimony offered on behalf of the contestants tends, not to overthrow, but to confirm the position that for twenty years or more the responsibility of taking care of the

The evidence offered, to show that the appellant was paid for his care of his mother, by the use of the farm and by wood taken from it before his father’s death, consisted mainly of declarations of the intestate, made about fifteen years before his death during the progress of a church trial, the result of a difficulty between the appellant and one Gordon, who had obtained from the intestate the title to a piece of land which the appellant had enriched with ashes. The intestate on that occasion said to the appellant, that he had agreed to let him occupy the place if he would take care of his mother and pay the taxes, and that he had not done it; that when a barrel of flour was wanted he (the intestate) had got it; and when fish was wanting he had got it; and that he had sold a piece of land as he had a right to do. The appellant made no reply. The intestate was inquired of by the minister, if he had not promised his son that he would give him the place, to which inquiry he made no answer. The intestate also charged the appellant with cutting large quantities of wood. One witness testifies that “the old man said, ‘you have cut a thousand cords of wood off the place I presume;’ I am nqt sure, it was hundreds at any rate.” Another testifies that “the old man told Jonathan he had cut three thousand cords, and he should not cut any more; Jonathan said nothing.but turned away; he usually did so; never spoke a saucy word to the old man.” This witness gives the only estimate which the case presents

Whatever might be the force of the evidence produced on the part of the contestants, if there were no circumstances in the case to overcome it¿ the conclusive answer to it is, that after all the facts occurred to which that testimony relates, the intestate made three if not four wills, in all of which the homestead farm was devised to the appellant, and the intestate repeatedly promised, and expressed his intention to make such devise, in consideration of what the appellant and his children had done and were doing for him; these declarations and promises being continued almost to the time of his decease. The declarations of the appellant which were proved do not aid the respondents. When asked to state whether he had any claim against his father, he replied that he had not; and when asked to execute a release he refused, unless his father gave him a deed. All this accords with his present position. In connection with this evidence some circumstances were disclosed, calculated to induce a belief that ° influences not altogether worthy of approval were brought to bear upon the mind of the intestate, to prevent the carrying out of his just intentions toward the appellant. Joseph Dayton, a witness called by the respondents, says: “Less

It is stated in the opinion of the Supreme Court, that “the services were those acts of kindness and affectionate regard which most sons would have been happy to have rendered, to an aged and lone mother.” This is very true, but it is equally true, that for such services aged parents who have the ability, are equally happy to make compensation. When such services are rendered for many years in succession by one only, of several children, the natural feelings of parents usually coincide with the dictates of justice, in bestowing upon such child some special reward on that account. - Although the services in this case were not rendered to the intestate directly, yet the evidence shows that they were rendered at his request, to one for whom he was bound to provide, and with a perfect understanding between him and the appellant, that compensation was to be made for them by the devise to the latter of the homestead farm. The evidence also leaves very little room to doubt, that until a very late period of his life the intestate designed to carry out that understanding, and would have done so had no artifice been resorted to, to prevent it. It is not material, however, in what manner the failure to carry out the understanding was produced; the fact of the failure entitled the appellant to compensation out of the estate for his services,

The judgment of the Supreme Court should be reversed, and the decree of the surrogate affirmed with costs.

Hogeboom, Ingbaham, .Weight, Johnson and Davies, JJ. concurred.

dissenting. The surrogate has found as matter of fact, that Jonathan Robinson performed services for his father and mother for the whole périod of twenty-five or thirty years, for which it was mutually understood between them that he (Jonathan) should receive compensation by a devise of the homestead farm.

Ho express agreement is proved or pretended, on the part of Jonathan, to perform services for his father and mother, or on the part of the father that he would pay therefor at any time or in any manner. The evidence relied on to establish the liability is a recognition of it by the father, and a promise given* that he would convey the farm in satisfaction.

The law implies a promise to pay when the services are rendered at the request of the defendant, and when there is no request proved, but they are rendered with the knowledge and tacit assent of the defendant. (James v. Bixby, 11 Hass. Rep. 34; Farmington Academy v. Allen, 14 id. 174.) But however valuable the services rendered may be, yet if they are rendered without the privity or consent of the person for whom they are rendered, the law affords the party rendering the service no redress. (Bartholomew v. Jackson, 20 John. 28 .)

These rules apply in actions between persons not members of the same family. As between them, different rules are applied, ( Williams v. Hutchinson, 3 Comst. 312;) or rather a higher degree of evidence is required to establish the' liability in the one case than in the other. (Moon v. Moon, 21 How. Pr. R. 211.)

But again, when the person rendering the service is a member of the same family at the time the service is rendered and is a near relative, so near, and the service of such a nature, that their performance would be prompted as well by affection as by desire for gain, the law will not imply a prohiise to pay, unless the circumstances are such as clearly to' rebut the presumption that they were rendered gratuitously. (1 Parsons on Cont. 529 and notes.)

The services in the case before us were rendered by a son, or by those of his family to' whose services he was lawfully entitled, to his aged and infirm mother who had been deserted by her husband, and left without any human being to take care of her or supply her wants, except so far as the use of the house and garden might enable her to supply them. If there is any case in which a child, possessed of human affections, could be presumed to render services gratuitously, this is the one. In the course of the twenty-five or thirty years during which this aged lady was left destitute and alone, this son furnished to her but a single barrel of flour and a few other articles of food. If he drew her a little fire wood, he seems to have cut largely from his father’s farm and for which he has never accounted. If his children made butter for her, they took half the product; if they cultivated the garden, they had the use of part of the land. Under such circumstances, if the son intended to charge the father for services, it was his duty to so inform him, or to prove such circumstances as would rebut the presumption that they were gratuitously rendered.

But it is said that such presumption is rebutted by the

Declarations of the intestate are proved, to the effect that he intended to give the farm to the son, and that he had in one or more wills, made and destroyed before his death, devised the farrti to the son. But this evidence is fully answered and overcome by the evidence on the other side, of the repeated statements of the son, that he had no claim against his father, and that too when the father called on him to know whether he had a claim which he ultimately intended to bring against him. The son had very considerable wood off the father’s farm and for which no account was kept dr rendered. And all inference favorable to the claim for services by reason of the making of a will or wills devising the farm to the son is fully met by the destruction of those instruments, which is a very significant act to show that he did not deem the son entitled to it.

The general term decided the case correctly on the merits, and their judgment should be affirmed.

Dentó, Oh. J. concurred with Mullin, J.

Judgment reversed..