Forsyth v. Ganson

5 Wend. 558 | N.Y. Sup. Ct. | 1830

By the Court,

Sutherland, J.

If the plaintiff can recover at all, it must be on the ground that the intestate, John Ganson, was legally bound to support his step mother, Esther Ganson, and that having refused to provide for her, the law implies a promise on his part to pay (he plaintiff whatever he has necessarily expended in her support. There is no evidence, either of a request on the part of the intestate to the plaintiff to provide for Esther Ganson, or of any express promise to pay him for supporting her. The jury, by their verdict, have found that .the intestate either had funds in his hands which he was bound to apply to the support of his step mother, or that upon a good consideration he had promised to provide for her; and I think the verdict is warranted by the evidence in the case.

After the father had given up all his property to bis sons John and James, and they had divided it between them, Timothy Beckus testifies that James, speaking of the division to John, said, “I consider that I have given you $1000 the best of the bargain. I have had a family while you have had none, and l expect the old people will remain with you.” James made no reply; but that he understood that he was to support his father and step mother is shewn by the testimony of Edward Waterous, who states that after the division between John and James, he beard John say that the old people were to live with him. They accordingly did remain with him during his father’s life, and the step mother remained some time afterwards without any objection or complaint on the part of the intestate. John Hascal also testified that he heard tire father say in John’s presence that he had given up all his property to him, and that he was to maintain him and his wife ; and the same witness further stated that he had heard a great deal of conversation in the Ganson family about their property, and that he understood from such conversation that John was to support the old people. This evidence warrants the conclusion that, in the division of the property of the father between the sons, the support of the parents was taken into consideration in the portion allotted to John, and that he undertook, in consideration of an extra allowance then made to him, to take care of and provide for the old people during their lives.

The admissions of James Ganson, one of the defendants, as testified to by George Hosmer, were competent evidence at the time they were received. Where there are several executors or administrators, the admission or confession of one will not charge the others and enable the plaintiff to recover against all; and the reason is, that each executor or administrator is responsible for his own acts only, and shall not be charged with the devastavit of his companions. One executor, therefore, cannot confess a judgment which shall bind his co-executors. Toller's Ex. 367. 1 Strange, 20. Hammon v. Huntley, and others, ex'rs, 4 Cowen, 494. James v. Hackley, 16 Johns. R. 277. In James v. Hackley it was contended that the acknowledgment of one of the administrators was conclusive evidence of the debt against all; but it was held that the other administrator was not concluded from shewing that the debt never existed or that it had been paid. The opinion of Judge Spencer in that case seems to concede that the admission of one administrator is prima facie evidence against all; but this appears to me to be carrying the doctrine too far, Each administrator may afford evidence against himself by his admission; and if the admissions of each are shewn, it is equivalent to a joint admission by all. It is competent, therefore, to prove the separate admission of each administrator of the debt; but such admission by one alone, where there are several, will not entitle the plaintiff to recover: though properly admitted therefore at the time, it should be excluded from the final consideration of the jury, unless other evidence is produced which will bind or conclude the other administrators. Here the objection was simply to the admission of the evidence. The objection was properly overruled. The charge of the judge is not objected to. He may have directed the jury to disregard this evidence.

The remaining inquiry is, (admitting the intestate to have been legally bound to support Mrs. Ganson,) whether this action can be maintained in the name of the present plaintiff. I am of opinion that it can. It appears to me to be analogous to the case of necessaries furnished to a wife or infant child for whom the husband or father improperly neglects or refuses to provide. In such cases the law raises an implied promise, on the part of the husband and father, to pay for such necessaries. 8 Johns, R. 72. 13 id. 480. 14 id. 188, 1 Esp. 270. 2 id, 739. 3 id. 1. 1 H. Black. 90. 3 Bos. & Pul. 252. 5 id. 148. 16 Johns. Rep. 281. In Mure v. Craig, 5 Bos. & Pul. 148, the husband had expressly covenanted with A., as trustee for his wife, to pay his wife a weekly allowance of five shillings; the wife lived with A., and the husband having neglected to pay the stipulated sum, A. brought an action of indebitatus assumpsit against him for board and other necessaries furnished to his wife, and the action was sustained, notwithstanding the express covenant on which it was admitted the plaintiff might have sued. The intestate in this case being legalty bound to provide for Mrs. Ganson, the services and supplies afforded to her by the plaintiff were advantageous to the defendant, and may well be considered as having been rendered at his request.

New trial denied.