In re Strickland — 22 N.Y. St. Rep. 899

Majority

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In re Dan A. Strickland, Deceased.

(Surrogate's Court, Cattaraugus County,

Filed April 10, 1889.)

Headnote

1. Parent and child—When claim by father against his son’s estate

ALLOWED.

Where a father mortgaged his farm, for the benefit of his son who received the proceeds, and afterwards the son died, a claim by the father for the amount will be allowed against the son’s estate.

2. Same—When not allowed.

But a father’s claim against his son’s estate for several years services rendered by the father in taking care of stock for the son and furnishing the stock with fodder and grain, and in boarding him and his men, will not he allowed unless it he shown that .there was an express agreement to pay or a mutual expectation by the parties that payment for such services was to he made. Claims of this character against a decedent’s estate are always viewed with suspicion.

A. D. Scott, for claimant; C. D. Murray and W. S. Thrasher, for contesting creditors.

—The claimant is the father and administrator ■of the decedent, Dan A. Strickland.

■The first claim arises out of certain mortgages given by the father, which it is alleged were really for the benefit of the son.

In 1873 the son then having barely attained his majority, desired to purchase a farm in Otto in this county, called the

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Parkinson farm; to accomplish this the father gave a mortgate on his own farm, to one Sally French for $2,000, the-proceeds of which were paid to the son. In 1879, Dan A., who was paying the interest on this mortgage at the rate of seven percentum, wished another one given at a lower rate of interest. The father accordingly mortgaged his farm to the Mutual Life-Insurance Company for $2,500, and out of this the son used $2,150, in paying up the preceding mortgage, and for other purposes, while the father had the remaining $350. The interest on this mortgage was paid by decedent, until about the time of his death in 1882, and the mortgage then remained a lien on the farm of the father, except that Dan A. paid $100 of the principal sum of thisincumbrance.

The evidence establishing this is uncontradicted, and. clearly shows these loans were for the benefit of the intestate. The contestant’s objection that this claim is invalid by reason of the running of the Statute of Limitations, is-hardly tenable.

The decedent recognized and kept alive the original debt, by paying the interest on it from time to time; it was not necessary that these payments be made directly to Strickland, as long as they were in recognition of the debt itself;, but even if the first loan had become tainted with this defense, it was cured and the debt revived, by giving the second mortgage, and paying the avails to the son.

The only evidence militating against this demand is, that, the books of the decedent show a final settlement between father and son in 1879, and after that time the intestate-charges the payment made by him, to his father; but the difficulty with this lies in the fact that all through Dan’s books there is no allusion to this mortgage or his liability under it, although the testimony irresistibly establishes it;, so that the inference is very strong that this charge, making-a distinctive, unusual one by itself, was not embraced within this settlement, and may not have been deemed necessary as long as the mortgage existed as a lien against, the father; the payments of interest made by the son and charged to the father would tend to prevent any mistakes-arising as to the person actually making them,

On the death of the son, therefore, there was due claimant the sum of $2,050, less the sum of $1,600, which he credits to him, leaving due to the father $450, and the interest, thereon since December, 1881.

The next claim of the father, is for services rendered by him in taking care of stock for the son, and furnishing him with fodder and grain for the same, and in boarding him. and his men.

The intestate was a stockdealer, buying cattle, hogs and horses, bringing them to his father’s farm, and disposing of them from there, or collecting them there preparatory to-driving them to the cities for market. He carried on this.

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business extensively from his earliest manhood until his death, and the father now presents a claim aggregating nearly two thousand dollars for the assistance he then rendered his boy.

This claim does not impress me favorably; there is no proof that any of the items now embraced in this claim were ever presented to the intestate; there* is no allusion to them on the books of the son; the father, himself, had no account or memoranda showing any of these transactions, but made up his charges solely from recollection; at least two settlements were had between the father and son, and a note was given as evidence of indebtedness from the son, and money was often paid by one to the other in payment of claims and accounts, and yet during these ten years there is nothing indicating that the father was making up charges which he expected the son to pay. Claims of this character, presented after the death of one of the parties, are always viewed with suspicion. Kearny v. McKeon, 85 N. Y., 139 . bic principle of law is better settled than that the foundation for a recovery in such cases must be an express agreement, or a mutual expectation that payment is to be made for the services rendered, and many of the circumstances so often alluded to by the courts in rejecting claims similar to Mr. Strickland’s, exist quite pointedly in this case. Williams v. Hutchinson, 3 N. Y., 312 ; Robinson v. Cushman, 2 Denio, 149 ; Shirley v. Vail, 38 How., 406 ; Roblee v. Galentine, 19 Weekly Digest, 153.

The claim must be disallowed.

A decree will be entered establishing the first claim at the sum of four hundred and fifty dollars and interest thereon since December 6, 1881.