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The referee refused to give any force to the memorandum, either as an obligation or as constituting an admission by the decedent of any liability to the claimant. He held that it did not create an obligation, because it was never delivered, and that it could not be regarded as an admission, because the decedent retained it in his possession. He was clearly right upon the first question, but erred in respect to
the second. It was an admission of a legal enforceable liability to the claimant for the sum stated therein. The words, "I owe him that," imply a debt, and there can be no debt in a legal sense without a consideration to support it. Both a debt and a consideration are implied in the words quoted. The memorandum did not constitute a contract or promise upon which an action could be maintained. It purported to be neither an agreement nor a promise. It was simply a direction addressed to his executors for their guidance, and being outside of the will and an unattested instrument, had no legal or binding force either as a direction or an obligation. But as an admission it was competent evidence, although the testator retained it in his possession. An entry or memorandum made by a deceased person against his interest, found in his books or papers, is in general admissible against his estate in favor of a party seeking to establish the fact stated. They are presumably truthful. (Govin v. de Miranda, 140 N.Y. 474; Wharton on Evidence, § 128.) The probative force which will be accorded to the admission depends upon the circumstances. The memorandum in question was deliberately made by the testator for the purpose of charging his estate after his death, and its deposit with his will was consistent with an intention that it should be evidence that he was indebted to the claimant in the sum mentioned. The appellate court decided that the memorandum was competent evidence as an admission, and that the referee erred in deciding to the contrary. But it nevertheless sustained the judgment on the ground that the oral testimony furnished no sufficient evidence that the services proved were rendered under an expectation on the part of the claimant that he was to receive compensation or under an express or implied promise by the decedent to pay for them. The court regarded the services as friendly offices which neither party understood would constitute the basis of a legal claim. The claimant was bound under the claim presented to show or to give proof tending to show a legal liability of the decedent's estate for services rendered. It may be admitted that the
oral proof standing alone would be an insufficient basis for a recovery for services rendered. It would be consistent with the view that what was done by the claimant was simply to discharge a duty to a friend in consideration of friendship alone. If the memorandum is wholly disconnected with the rendition of services, and cannot be considered in determining the question whether the services were rendered under circumstances entitling the claimant to compensation, it may well be that the error of the referee was harmless. The memorandum, as we have said, admitted a valid debt. But the particular consideration was not stated; and, unless the consideration was services rendered, and that could be found from the whole evidence, the proof of the memorandum did not aid the claimant in establishing the claim presented. There was no evidence of any indebtedness growing out of facts disconnected with the services. Services were rendered which might create a liability on the part of the decedent to the claimant if so intended by the parties. We think it was competent for a court or jury, in the absence of any other explanation, to connect by inference the memorandum with the services, and so furnish the element lacking in the oral proof, namely, that the services were rendered at the request of the decedent with the expectation that compensation would be made. It was certainly not unnatural that the decedent, who, as the evidence shows, called upon Gallagher whenever he was ill for aid, and whom Gallagher assisted in his business matters at such times, should wish to remunerate him, nor is it unreasonable to suppose that Gallagher might expect some pecuniary recognition of his services. The case does not call for any straining to defeat the claim in question, and we think that, the referee having erred in refusing to treat the memorandum as an admission, a new trial should have been granted so that the tribunal of first instance may pass upon the question presented upon a consideration of all the relevant facts.
The judgment should be reversed and a new trial ordered.
All concur, except GRAY, J., absent.
Judgment reversed.