In re Totten — 121 N.Y.S. 942

Majority

p. 942

In re TOTTEN et al.

(Supreme Court, Appellate Division, First Department.

March 11, 1910.)

Headnote

1. Husband and Wife (§ 19^[2] )—Medical Services Furnished Wife—Liability of Husband.

' The primary liability for medical treatment furnished a wife rests on her husband, and the wife is not personally liable, in the absence of a special agreement by her.

[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. § 135; Dec. Dig. § 19.^[2] ]

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2. Husband and Wife (g 232^[2] )—Medical Services Furnished Wife—Liability of Wife—Contracts.

Evidence held to show that a wife made a special agreement to pay for medical services rendered her, making her estate liable therefor.

[Ed. Note.—For other cases, see Husband and Wife, Cent. Dig. § 848; Dec. Dig. § 232.^[2] ]

3. Executors and Administrators (§ 267^[2] )—Claims—Interest.

Where the claim against a decedent’s estate was unliquidated, and was for much too large a sum, the claimant was not entitled to interest.

[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 1038; Dec. Dig. § 267.^[2] ]

Appeal from Surrogate’s Court, New York County.

Proceedings by Wallace E- Brown to establish a claim against the estate of Sarah B. Totten, deceased. From so much of the decree of the Surrogate’s Court as sustained the exceptions of William H. B. Totten and others, as executors of the decedent, to the report of the referee, and as reversed the report and disallowed the claim of claimant, and adjudging costs to him, he appeals.

Reversed, and proceedings remitted.

Argued before CLARKE, McLAUGHLIN, SCOTT, MILLER, and DOWLING, JJ.

Duncan Edwards, for appellant.

Thomas E. Keogh, for respondents.

This is an appeal from so much of a decree of the Surrogate’s Court as rejects a claim against the estate of the testatrix and charges the cost of resisting the claim upon the claimant. This is a claim for board at a sanitorium and for medical services. The claimant, Wallace E. Brown, was a physician, specializing in cases of cancer, and maintaining a sanitorium in Massachusetts. Decedent was a lady with a separate estate of about $20,000 and an annual income of about $12,000. She was afflicted with what was believed to be cancer in the breast, and after treatment by her family physician decided to go to claimant’s sanitorium for treatment. She went twice. On the first occasion it is conceded that she paid her own board. The present claim is in part for board on her second visit, and in part for professional services.

The amount is not seriously questioned. The only question is whether she contracted the indebtedness, or her husband did. He is president of a savings bank, with a salary of $5,000 per annum, and as against him the statute of limitation has run. There is no doubt of the rule that the primary liability for medical treatment furnished to a wife rests, upon her husband, and that the wife is not personally liable therefor, in the absence of a special agreement by her to make herself responsible. Such an agreement, however, need not be shown by direct evidence, but" may be found upon evidence of surrounding circumstances, including acts after the service, indicating an acknowledgment of liability for the service. In the present case decedent’s husband accompanied her to claimant’s sanitorium and made arrangements

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for the price to be paid for board. The husband says that he made these arrangements “acting for” his wife.

We do not attach as much importance to this as appellant^ does; but it has some significance, in view of the fact that the wife herself actually paid the board thus arranged for. The most significant evidence, however, is as to the wife’s subsequent recognition of her liability. On September 13, 1903, claimant sent decedent a bill, in her name, for his services. To this she replied in a letter written by her husband, but in her name and by her authority, demurring at the amount of the bill, but expressing a willingness to pay a fair compensation. To this claimant replied, expressing a willingness to satisfy her as to amount, but requesting a payment of $100 “on account, thus protecting his rights.” Thereupon she did send him her check for $100. All this seems to us to indicate a recognition by the decedent of the fact that she was personally indebted to claimant, and sufficiently establishes the claim.

The claimant asks for interest. The claim was unliquidated, and, as now appears, was for .much too large a sum. We do not think that interest should be allowed.

The decree, in so far as appealed from, must be reversed, and the proceeding remitted to the Surrogate’s Court for the entry of a decree in accordance with this opinion. All concur.