In re Jones

Benjamin F. Jones, executor of the will of William Jones, deceased, presents, on the judicial settlement of his account, a claim against the testator amounting to $865.25; being all, with the exception of $3, for the board and care of William Jones from May 5, 1895, to March 16, 1897, the date of his death. Sarah E. McCoon, who is the sole legatee named in the will of William Jones, besides Benjamin F. Jones, objects to the allowance of said sum of $865.25, for the reason that the claim is illegal and unjust, and not a proper charge against the estate of the testator. By the will of William Jones, one-third of his estate, after the payment of a legacy of $100, is bequeathed to Benjamin F. Jones, and two-thirds is bequeathed to Sarah E. McCoon. The estate is a small one. The executor charges himself with $1,767.83. He credits himself with the payment of funeral expenses, expenses of administration, and debts, $351.94; leaving a balance of $1,415.89, to be distributed on this accounting. Commissions and expenses of this accounting are to be deducted before any payment can be made to the legatees. It

Benjamin F. Jones is a nephew of William Jones. Sarah E. McCoon is a niece of the deceased wife of William Jones, and lived in his family from infancy to the time of her marriage, which took place when she was 18 years of age. She called him “father.” He stood, therefore, in loco parentis to her. The wife of William died many years ago. When Mrs. McCoon married, William sold his farm and moved to the home of his brother, Milton Jones, not far from Ms former residence, where he was living at the time his brother died. Milton Jones died January 20, 1895, and was buried January 23, 1895. The next morning after the death of Milton Jones, Theodore Jones, a son of Benjamin, went to the house of the deceased, where he found William Jones crying. “I don’t know what will become of me,” he said. “I have nothing to help myself with. I think I will have to go to the poor house.” Theodore said to Mm, “Uncle William, I think you can have a home with father.” William replied: “I can go with McCoon, but I don’t want to go there. They will depend on me to pay my board, and buy everything they have in the house, and I have nothing .to do with.” Theodore said: “I will go and get father and bring him up here, and you can have a conversation with him.” Theodore hitched up his horse and brought Ms father there. The father said to William: ‘You can have a home with me as long as I have one.” William replied: “I want to go to Hunter and make Sadie a visit, and then I am coming to make my home with you.” By “Sadie” is meant Mrs. McCoon. The above is an extract from the testimony of Theodore Jones on his direct examination. On his cross-examination he said: “I had a talk with William Jones the day after Milton’s death. He was crying. He said he didn’t know what would become of Mm; he guessed he would have to go to the county house, or to the poor house. I said: ‘There is no use of you feeling like that. I think you will be welcome to have a home with father.’ He said: ‘I can go to McCoon’s, but I don’t want to. They will depend on me to pay my board and support them, and,’ he said, ‘I have nothing to do it with.’ ” This witness further testifies on Ms cross: “There was a conversation had there on that day between William Jones and Ms father, in which Benjamin said to William that he could go to his house and have a home the same as he had.” Nothing was said about pay, so far as the witness heard. ‘William said he would go up and make a little visit at McCoon’s, and then he would come and make his home at father’s.” There is no evidence that shows what kind of a home William had at Milton’s. I think it would throw some light on tMs case if we had such testimony, and help explain what Benjamin meant when he said that William could have a home with Mm, the same as he had. We have nothing to draw an inference from, except that William’s circumstances were very poor. Mrs. McCoon, who was a witness in her own behalf, said that, on the day of the funeral of Milton Jones, Benjamin asked William to go down there,

I have been careful to state quite fully the conversation that took place at Milton Jones’ between William and Benjamin, for the reason that it is the origin of the family relation which they sustained towards each other during nearly the whole remainder of William’s life, and also because it aids in the solution of the problem in hand: Did Benjamin Jones at that time intend to charge William for his board and care, or did he intend to furnish them gratuitously? William was crying because he said he had nothing to do with, and would have to go to the poor house. He did not want to go to McCoon’s, because he would have to pay for his board, and also for their support. The McCoons were in poor circumstances, and could not afford to support him without pay. At the time of the death of Milton Jones, William Jones was possessed of very little property. He held a note against C. E. Lake and others for $400, and that seems to have been the extent of his possessions. This state of things explains why William sáid on the morning after his brother’s death: “I don’t know what will become of me. I have nothing to help myself with. I think I will have to go to the poor house.” When Theodore Jones said, “There is no use of feeling like that: I think you will be welcome to have a home with father;” and when Benjamin said to William, “You can have a home with me as long as I have one,” or, “You can go to my house and have a home the same as you had,”—neither Theodore nor Benjamin could have had in mind that William was coming to his nephew’s house as a boarder; and least of all could William have supposed that such was the case. He did not use the language that he did for the purpose of procuring a boarding place. Although he told them he had nothing, the invitation was to have a home at Benjamin’s as long as the latter had one. The testimony of Mrs. McCoon as to what was said by Benjamin to William on the day of the funeral is to the same effect. On other occasions, also, at the house of the McCoons, Benjamin invited William to his house. At the time of the funeral of Milton Jones the contents of his will were not known, but in June, 1895, William received from the estate of his brother $1,700. The estate of William was inventoried at a little less than $1,700. The remark attributed by Theodore Jones to William, that he did not want to go to the McCoons because he would have to support them besides paying for his board, is a strange remark to make, if he did make it. Tnere is nothing in the testimony that justifies so harsh a remark. He had a high regard for the McCoons,—especially for Sadie. A few days after Milton’s funeral, he went to Sadie’s, and stayed there for more than three months, during half of which time he was sick, and all the while in an enfeebled condition. He visited the McCoons three other times during the remaining two years, or nearly so, of

A few days after the funeral of Milton Jones, William went to the house of Mr. and Mrs. McCoon, where he stayed until May 5, 1895. Shortly after his arrival at the McCoons, he had a stroke of paralysis, from which he never fully recovered. He had previously suffered from two slight attacks of the same trouble. After he got around again from this last attack, he is spoken of as a broken-down old man. The last attack affected him on the left side. His left hand and arm became almost useless. He was at this time 72 years of age, and had

We must resort to circumstantial evidence or indirect proof in " .order to determine whether William’s estate is liable for the pay- - anent of the executor’s bill. Where the positive evidence in a case . is not satisfactory, circumstantial evidence bearing upon the main .,point at issue becomes a very important help in removing the diffi- • -ml ties in the way. About the time of the conversation between Wil- . .liam and ‘Benjamin, at the house of the latter, as testified to by ' ZTheodore, this witness says that William said: “Phoebe, you have . an awful task in doing my washing. I have always paid Sadie Mc- • 'Coon and Lou Holcomb twenty-five cents a week for doing my wash- . ring, .and there were no such dirty clothes as these, and you ought >>.to.have more. You keep track of the washing, and I will pay you Mor it.” If Theodore’s testimony is true, an agreement had already ¿"been made for keeping William, and for his staying there. These \ words “staying” and “keeping” include, not only board, but care and «washing. It would seem quite out of place, in a person of William’s -moderate -.circumstances, that he should agree to pay twice for his ¿washing. The answer that Benjamin gave to William’s question is «evasive. He does not tell him what he is going to charge him for i staying there. The whole matter is postponed until after Wil-Hiamls -death, and then all charges for board, care, and washing can t>e brought in against his estate, without being limited by an agreed- ' supon price. The evidence shows that William never paid Mrs. Jones

“In general, wherever service is rendered and received, a contract of hiring, or an obligation to pay, will he presumed. But it is said not to be so where the service is rendered to the parent or uncle, or other near relative of the party, on the ground that the law regards such services as acts of gratuitous kindness and affection.”

“The parent is not legally entitled to the custody or earnings of his children after they arrive at the age of twenty-one; nor is he entitled to the earnings of, or bound to maintain, his nephews or nieces; yet if they live with him as members of his family, without any contract or understanding that he shall pay for their services or receive pay for their maintenance, the law will not imply a promise to pay on either side.”

In Wilcox v. Wilcox, 48 Barb. 327 , 329, the court says:

“The law will not imply a promise to pay for board or services, as among members of the same family and persons more or less intimately or remotely related, where they are living together as one household, and nothing else appears.”

Abb. Tr. Ev. p. 359, states, in substance, that the relation of nephew and uncle raises a presumption that no payment was to be made, beyond that received by the claimant at the time.

Jagau v. Goetz, 11 Misc. Rep. 380 , 32 N. Y. Supp. 144 , is a case very much in point, or would be if the statute of limitations had not been raised as one of the defenses. In that case the plaintiff was the nephew of the defendant’s husband, and had been living at the defendant’s ever since he' came to this country, when a mere lad. The court says:

“The plaintiff being in defendant’s family as a portion of it, the promise, or understanding to pay him wages was necessary, as, without some understanding between parties bearing such relation, no agreement to pay for the services rendered would be implied, and no action would lie.”

The executor in this proceeding principally relies upon In re Duffy, 19 Misc. Rep. 92 , 43 N. Y. Supp. 970 . The claimant was a niece of the testatrix, and rendered valuable services to her aunt in boarding and .caring for her for seven years during the latter part of her life. There was no express agreement to pay, but there was an expectation on the part of the claimant that she would be remunerated by a provision in the testatrix’s will. There was also an intention on the part of the testatrix to compensate her in this way. .Claimant was made residuary legatee in her will, but the estate was exhausted by the general legacies, and there was nothing for the residuary legatee to receive. We have here an expressed intention to pay, but a failure to do so. It may be that a question of fact arose that would bring that case within the principles laid down in Robinson v. Raynor, 28 N. Y. 494 ; Collier v. Rutledge, 136 N. Y. 621 , 32 N. E. 626 . A contract, express or implied, could be inferred-from the provision of the will, which remained unchanged, the same as if the testatrix had made and delivered her note. The residuary legacy in Duffy’s Case, although it shows an intention to pay, was not an effectual provision, and the liability would still remain. The surrogate before whom that case was tried took another view of the case, using the following language:

“The law implies an intention on the part of the testatrix to pay for valuable services rendered to her with her knowledge and consent. Thus we obtain the necessary element of contract. The relationship is not sufficiently

close to bring this case within the rule that a contract to pay will not be implied.”

The other cases cited upon claimant’s brief, viz. Woodward v. Bugsbee, 2 Hun, 128 , Bradley v. Bradley, 48 N. Y. St. Rep. 490 , 20 N. Y. Supp. 452 , and Markey v. Brewster, 10 Hun, 16 , are cases where there was proof of an express contract, or of circumstances from which an implied contract might be inferred, and do not state the general rule.

I‘will assume the law to be that, where the relationship of a person taken into a family is that of an uncle, this alone will not repel the presumption that his board is to be paid for. It is a fact, however, which casts suspicion upon the validity of a claim of this kind. It tends to rebut the presumption, and is to be taken into consideration with the other circumstances in the case, in determining whether the presumption is overcome. The fact that the contract between William and Benjamin, as testified to by Benjamin’s son, was not to be performed on William’s part until after his death, casts grave suspicion upon the existence of such a contract, and cannot be established without clear and satisfactory evidence. In Gaylord v. Gaylord, 7 N. Y. St. Rep. 703 , the court says:

“Alleged oral dispositions of estates, to take effect in the future or after death, should not be found or supported unless established by abundant evidence, of the most satisfactory and convincing character.”

More forcible and more at length is the language of the court of appeals in Shakespeare v. Markham, 72 N. Y. 400 , 403:

“Contracts claimed to have been entered into with aged or infirm persons, to be enforced after death, to the detriment and disinheriting of lawful heirs, who otherwise would be entitled to their estates, are properly regarded with grave suspicion by courts of justice, and should be closely scrutinized, and only allowed to stand when established by the strongest evidence. More especially should this rule prevail when the contract is not in writing, rests entirely upon paroi testimony, which is not very precise and somewhat uncertain, and is directly in conflict with the will of the deceased, executed some time before the agreement claimed was entered into, and which remained unrevoked at the time of his decease.”

In the case in hand, the estate would be more than half consumed if the executor’s claim be allowed as presented, and, if the testator had lived two years longer, at the same rate of charge by Mr. and Mrs. Benjamin Jones, the estate would be insufficient to pay the claims. We are asked to accept this contract as proved upon the uncorroborated • testimony of the claimant’s son. If, on the other hand, the claimant rests his case on an implied agreement to pay the reasonable value of decedent’s board and care, he is met by the difficulty that no bill for board or care was ever presented by the claimant during the lifetime of the testator, and that no payment was made on account. This also is a circumstance to be considered in determining whether the presumption of an implied contract that decedent should pay for his care and board has been overcome. Says the court of appeals in Kearney v. McKeon, 85 N. Y. 136 :

“Claims withheld during the life of an alleged debtor, and sought to be enforced when death has silenced his knowledge and explanation, are always to be carefully scrutinized, and admitted only upon satisfactory proof.”

“Demands of this character are not unusual in administration cases; and, as the party who had the best means of controverting them has been removed by death, they are not to be regarded with any favor, especially where the claimant has allowed his claim to sleep during the lifetime of the decedent. In all cases of this kind, the evidence should be very clear that the services were performed by the claimant, expecting to be paid for them, and that the decedent so understood it, or had reason to believe that he was to be charged therefor.”

The unsupported testimony of claimant’s son is not such clear and satisfactory proof of an express contract as to overcome the suspicious circumstances connected with the claim. In Hughes v. Davenport, 1 App. Div. 182 , 184, 37 N. Y. Supp. 244 , the court says:

“The rule that a fact testified to by a disinterested witness, who is not discredited, which is not in conflict with other evidence, is to be taken as legally established, and cannot be disregarded by the court or jury, is not applicable to this class of cases.”

On the whole case, the executor , has not proved Ms claim to the satisfaction of this court, within the rules of law applicable to this class of cases. Winne v. Hills, 91 Hun, 89 , 92, 36 N. Y. Supp. 683 ; Van Slooten v. Wheeler, 140 N. Y. 624 , 633, 35 N. E. 583 . If the executor has suffered harm by reason of the application of the rules of law to the evidence in this proceeding, he has Mmself alone to blame for it. The difficulty in proving his claim could easily have been obviated, either by a written contract, or by some other method that would have furnished satisfactory proof of his right to compensation, Forbes v. Chichester, 30 N. Y. St. Rep. 370 , 8 N. Y. Supp. 747 . On the other hand, if, as the evidence shows, it was the intention of claimant to furnish a home for his uncle without charge, he cannot now, however meritorious his services, recover, on a quantum meruit or otherwise, for Ms services and acts of kindness. Moore v. Moore, 3 Abb. Dec. 308, 312.

For the above reasons the claim of the executor to compensation out of the estate of the decedent for the board and care of said decedent is disallowed. Decreed accordingly.