Hewlett v. Jewesson — 46 N.Y. St. Rep. 144

Majority

p. 144

Oliver T. Hewlett, Resp’t, v. Emeline Jewesson, Adm’rx, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 9, 1892.)

Headnote

Decedents’ estates—Claim for board and maintenance.

Proof that claimant furnished cooked food from his table five times a week to deceased, who did not reside with him, but in her own house, and occasionally a small quantity of coal, and that he paid a small sum to a nurse during decedent’s last illness, and proof of declarations of decedent that he was her best friend, and she meant he should have her deposit in savings bank, and that she owed him money, is not sufficient to furnish a basis for a claim of $10 a week for six years for board, care and maintenance.

Appeal from judgment in favor of plaintiff, entered upon the report of a referee.

Action to establish a claim against the estate of Elizabeth Hewlett, deceased.

Thornton, Earl & Kiendl, for appl’t; Henry A. Monfort, for resp’t.

Elizabeth Hewlett died in March, 1889, in Hempstead, Queens county, N. Y. She had always lived there, and was over eighty-two years of age at her death. Oliver T. Hewlett presented a claim against her estate for board, care and maintenance of deceased. The claim was for $10 a week, and it was allowed as presented. The evidence shows that the. deceased did not live in the family of claimant, but lived in her own house. The evidence fails to show an employment of the plaintiff by deceased. The whole claim is substantiated by proof that the claimant furnished the deceased cooked food from his own table some five days in the week, and on a few occasions furnished coal, and a few other articles of trifling value. The' coal was not furnished over once a month, in a bag or basket A very small sum was paid to a nurse during the last illness of the deceased. There is no declarative bill, such as would be looked for if these things were furnished on a business basis. The whole proof of a contract consists of a declaration that claimant was her best friend, and she meant that he should have her deposit in the Dime Savings Bank, and that she owed him money. The evidence is very voluminous, and as a whole furnishes ground for a doubt whether or not the articles furnished, as proven by claimant, were not very much exaggerated. It seems certain that no basis is given for a charge of $10 a week for the last six years of the life of deceased; at its extreme value as claimed, that allowance would be excessive.

The judgment should therefore be reversed and a new trial granted. Order of reference vacated.

Dykhan and Pratt, JJ., concur.