1 Dem. Sur. 464 | N.Y. Sur. Ct. | 1882
The petitioner, who is a nephew and one of the heirs of the deceased, claims that he did work and rendered services to her, for which she agreed to compensate him by a provision for his benefit in her will. The testatrix left all her property to her sister, who does not deny that the petitioner did some work for the deceased, for which he was to receive compensation, but she claims that he has been fully paid therefor. She also sets up the statute of limitations.
The first question to be considered is whether the petitioner was paid for his services by the testatrix, before her death.
Mrs. Kergill, who is the sole devisee under the will, testifies that she saw the testatrix pay the petitioner for his work every time that he did any for her. This is denied by the petitioner, who swears that the testatrix never paid him for his own time and labor, but only sometimes for the materials used by him and the labor of men hired to assist him. Mrs. Kergill and Mrs. Freeman also testify that, on one occasion, shortly before the death- of the testator, the petitioner was complaining that he had not been paid for building the house on the rear
The defence of the statute of limitations renders it necessary now to inquire whether the petitioner was to be paid for his work and services by a provision to be made for his benefit in Mrs. Graham’s will, because, if so, the statute would not begin to run until Mrs. Graham’s death, which only occurred in July, 1818. The rule of law applicable to claims for compensation by will for services rendered to the testator is nowhere better stated than in the case of Shakespeare v. Markham (10 Hun, 322). It is there said: “Where a party renders services to another in the expectation of a legacy, and in sole reliance on the testator’s generosity, without any contract, express or implied, that compensation shall be provided for him by will, and the party for whom such services are rendered dies without making such provision, no action lies; but where, from the circumstances
The evidence, from which it is claimed that it appears in this case that the testatrix agreed to compensate the petitioner by making provision for him in her will, consists of her declarations, made in conversations relating to the work which the petitioner was doing for her. To the petitioner’s wife, she said that she didn’t know how she could get along without the assistance of the petitioner; she should never forget him; all that was there should be his; she would take nothing with her; he was working for himself; he knew it was for himself he was doing it; nothing was said about pay but his pay should come from the property. To several others she said that the petitioner was working for himself; that the property would be his.
In speaking to Alderman O’Connell about rebuilding the rear building, she said, in substance, that she was sorry to compel Eagan to do the work, but, having no other friend she could rely on but him, she thought it best to have him do it; that, although it was troublesome to him to do the work, she did not expect to live many years, and the property she possessed would of course go to him.
One witness testified that the testatrix said she would will all her property to the petitioner, in compensation for the work he had done about the place, but the weight of his testimony is considerably impaired by his incredible statement that he had no conversation with the petitioner or his counsel about the case before coming into
George Hughes testified that the testatrix told him, in the presence of the petitioner (referring to the work he was doing), that it was for himself that he was doing it, and for him to do it in a proper way. We then have this state of facts on the evidence: that the petitioner, through a number of years, rendered valuable services to his aunt; that his services were not intended to be gratuitous; that his aunt paid some of the expenses that he was put to in doing the work, but did not compensate Mm for his own time and labor; that although, as heir, the petitioner would only be entitled to a small proportion of his aunt’s property, she repeatedly said that he was working for himself, for the property would be his after her death; that it does not appear that he made any claim to be paid for his services during the lifetime of his aunt, until after he had learned that she had made a will leaving all her property to her sister. These facts are sufficient evidence, within the authorities, of a mutual understanding between the petitioner and his aunt that he was to be compensated for his work and services through the will (Jacobson v. Executors of Le Grange, 3 Johns., 199; McRae v. McRae, 3 Bradf, 199; Robinson v. Raynor, 28 N. Y., 494; Quackenbush v. Ehle, 5 Barb., 469)
The value of the petitioner’s services remains to be determined. He has charged $50 a year for seven years, beginning in 1871, for collecting rents as agent. These charges cannot be allowed.
In answer to his own counsel, in explanation of the nature of the services covered by them, he said that
But, as these services as agent were not included in the agreement for compensation to the petitioner by the will of the deceased, which agreement related only to the petitioner’s labor expended upon the real estate in keeping it in good order and repair, he can only recover for the services rendered since May 5th, 1873, the rest being barred by the statute of limitations.
The petitioner has, in many instances, charged very high for his time, $5 a day, and there are other features of his claim, such as the above mentioned charges of fifty dollars a year for collecting rents, which create the impression that no injustice will be done to him in cutting it down to $700, at which sum it is allowed.
Findings and decree may be settled on two days’ notice.