31 N.Y.S. 936 | N.Y. Sup. Ct. | 1894
It appears that in the month of January, 1888, the defendants’ intestate, Jane Beattie, entered into a contract with the plaintiff’s testator, William Beattie, wherein she agreed that if he would supply her with a home in his family, and would furnish her with board, care, and attendance, he should be well paid for the same by her; that pursuant to such agreement she went to reside in his family in the fore part of January, 1888, and thereafter made her home with him until her death, on the 28th day of May, 1892; that during that time she was supplied with a comfortable room, and with such board, care, and attendance, including her washing, as was necessary and suitable for a person in her condition and circumstances; that at the time she took up her residence with the plaintiff’s testator she was about 88 years of age, and somewhat infirm, but for a period of about 18 months thereafter did not require any exceptional care or attendance other than that ordinarily required by a person of her advanced years; that thereafter she became feeble in mind and body, and during the last years of her life required and received from the plaintiff's testator and his family care and attention of an exacting and dis
It further appears that the claim against the estate was presented by William Beattie in his lifetime, but that he, shortly thereafter and before the trial of this action was completed, died; that prior to the year 1888, and before Jane Beattie went to reside with him, he had, as her agent, collected for her use the interest accruing upon a mortgage owned by her during the years 1885, 1886, and 1887, amounting to $1,025.60. It is claimed that this sum should be charged to him and credited upon his account. The circumstances disclosed under which these collections were made are somewhat meager. It appears that William Beattie was the nephew of Jane Beattie, and that they lived in the same town, near each other; that Jane Beattie’s property chiefly consisted of a mortgage for $4,815 upon real estate in the same town; that she collected the interest accruing thereon herself, until the spring of 1885, after which the interest was paid to William Beattie; that she was then 85 years of age, and when payments were made to her she said that William Beattie would make the indorsements for her; that this manner of payments to her and the indorsing of the interest by William commenced as early as 1883, and continued up to the time that the interest was paid to William. She then appears to have delivered the mortgage to William, who made the collections for her thereafter. After she went to live with William, in 1888, he still continued to make the collections of the interest paid upon the mortgage, but has charged himself therefor, and accounted for such collections. As to what was done with the money collected by him prior to that time the case is silent; but the referee has found that the legal presumption, under the circumstances, is that he had performed his legal duty, and paid over and accounted to her for the moneys so received by him, and that his estate is not chargeable therefor. We are inclined to the view that the conclusion of the referee should be sustained. It appears that Jane Beattie, up to the year 1885, chiefly transacted her own business; that she made her own collections, paid her taxes, etc., without assistance, except as she had William make the indorsements for her upon her mortgage; that her mind remained reasonably clear for 18 months after she went to live with William. She therefore must have known when the payments became due upon the mortgage, the amount thereof, and of the sum that should be turned over to her by her agent. At the time she went to live with William she agreed to pay him well for the services that he should thereafter render, making no demand nor claim that he held in his possession any funds belonging to her. We are aware that in the case of Andrews v. Moller, 37 Hun, 480, it was held that it was only necessary for the plaintiff to show that money belonging