15 Mills Surr. 106 | N.Y. App. Div. | 1915
Lead Opinion
This decree is based upon the finding that on or about the 30th day of October, 1898, at G-eneseo, Livingston county, N. Y., the said Pauline A. Piffard and the said M. Emeline
The said Pauline A. Piffard, on her part, agreed at her own cost and expense to purchase for a home a certain residence and property at Piffard, Livingston county, N. Y., known as the Piffard homestead and containing about forty-two acres, together with an additional nearby parcel of land containing upwards of eighteen acres, providing the same was sold at such a price as to come within her means; to put the said homestead in good repair and maintain the same as a home for herself and the said M. Emeline McMillan during the latter’s lifetime; to give the said M. Emeline McMillan first choice of the rooms in the said house for use as her private apartments as well as the general use of the premises as one of the family; to provide the said M. Emeline McMillan with barn room for carriage and wagons; to provide stabling for the horses of the said M. Emeline McMillan and to support these horses for her, charging her no more than the actual cost of so doing; to cater and provide for the table so as to meet with the needs and desires of the said M. Emeline McMillan; to provide and keep a man on the premises whose duties should be those of a gardener, chore man in and about the house and farm, and that when the man needed additional help in carrying on the work on and about the place, in the way of men and teams, to provide the same at her own expense; to purchase and maintain on said place a sufficient number of cows to keep the establishment in milk, cream and butter, and a sufficient number of fowls to supply eggs and young poultry for the said home; to manage a large garden upon the said place containing about an acre and a half of land so as to supply the said family with all necessary vegetables, small fruits and flowers for their support and comfort; to provide all necessary additional furniture to comfortably furnish the said house after the said M. Emeline McMillan had placed therein the furniture and other household belongings she had in the Colt house, in G-eneseo, N. Y.; to maintain such furniture in good repair, and from time to time, as the same became worn
The said M. Emeline McMillan, upon her part, contracted and agreed in the event said Pauline A. Piffard should purchase the said Piffard homestead to go to the said Piffard homestead with the said Pauline A. Piffard and her family and make her home there during the balance of her life; to pay the said Pauline A. Piffard $100 a month for eight months of each year for the maintenance of said home, and if the said M. Emeline McMillan remained therein for a greater period of time than eight months in any one year, to further pay the said Pauline A. Piffard at the rate of $100 per month for each month of such overtime; to place in the said home the furniture and other household belongings which the said M. Emeline McMillan then had in the said Oolt house in Geneseo, 1ST. Y., and contribute them so far as they would go toward the furnishing of said new home; to leave such furniture there during her lifetime, and that at the death of said M. Emeline McMillan the said furniture was to become the property of the said Pauline A. Piffard, excepting such articles of furniture and bric-a-brac as the said M. Emeline McMillan wished to give away to other members of her family and friends for keepsakes; that she should not cause to be removed from any one room for that purpose a sufficient amount of furniture to deplete the furnishing of that room; to keep a maid to wait upon and take care of her, the said M. Emeline McMillan, and to have the said maid do a sufficient amount of work in the said household to pay for the said maid’s board; to purchase horses and a carriage with the necessary equipment for the same and to maintain them and to employ a coachman for the general use of the said family; and when she, the said M. Emeline McMillan, died, to leave to the said Pauline A. Piffard a sufficient amount of property by will to produce an annual income equal in amount to the sum which she was to contribute annually towards the support of said home so that the said Pauline A. Piffard could continue the said home after the death of the said M. Emeline McMillan in the same fashion as during the latter’s lifetime, and for that purpose to leave to the said Pauline A. Piffard the equivalent, in cash or other securi
Mrs. Piffard was a niece of Mrs. McMillan, and if she had died intestate would have been entitled to one-half of her estate. Mrs. McMillan was born in 1832. In 1885 Mrs. McMillan and her niece, then Pauline Arthur, were together in Rome, Italy, where Pauline’s mother had died. For many years thereafter she and her niece traveled and lived together. They had at one time a family home in Washington, D. 0., which was broken up by several deaths. They had a home in Geneseo, N. Y., which Mrs. McMillan maintained and conducted, to the upkeep of which the niece contributed. In February, 1898, Miss Arthur married D. Halsey Piffard. The contract set forth supra was alleged to have been made in November, 1898. It involved the purchase of the property known as the Piffard estate by Mrs. Piffard for some $5,000, the repair and furnishing thereof which cost about $6,000 more, and the setting up of a joint home; Mrs. McMillan to pay $100 a month for at least eight months in the year, and $100 a month for any of the other four months in which she might remain there, and with provisions in regard to horses and carriages and a maid. The property was bought and repaired. Mrs. McMillan took her furniture there. Mr. and Mrs. Piffard and Mrs. McMillan moved into the house in May, 1899, and lived on this property from that time down to October, 1902, when Mrs. McMillan went away, apparently for a visit, taking a few of her things. She never returned to reside there. She died in 1907, leaving a will in which no mention was made of Mrs. Piffard. All her property was left to her other relatives.
In 1904 Mrs. Piffard’s attorney sent to Mrs. McMillan the following written demand: “ The undersigned hereby demands
“To maintenance or contribution toward the home at the rate of $100 per month for eight months ....... $800
“For damages by reason of your failure to furnish for the use of the home a carriage, team or conveyance with proper equipment, and a man to care for the same and to render services in and about the home and premises, and for your failure and neglect to furnish a maid to render services in and about the premises, under the provisions of your said contract, in the sum of.................................... $950
$1,750
“ Dated August 2,1904.”
And in August, 1905, another demand was sent to Mrs. McMillan in the same form with the addition of this claim: “ The undersigned likewise demands the sum of $1,750, heretofore demanded from you, with interest thereon from June 1, 1904.”
This case is differentiated from many of the cases under which similar contracts have attempted to be established in the courts, after the death of the testator, in the fact that these demands were made in her lifetime and that in April, 1906, Mrs. McMillan brought suit in the Supreme Court, county of Livingston, against Mr. and Mrs. Piffard in replevin for her furniture which remained in the house after her departure in 1902, valuing said chattels at $2,215.70, and that in the answer in said suit Mrs. Piffard set up as a counterclaim this oral agreement.
Mrs. McMillan’s testimony de bene esse was taken before a referee, and, upon trial of that replevin suit, so much of it as applied to the ownership and possession of the chattels sued for was read in evidence, she having died before the trial. The
Presiding Justice McLennan, with whom Justice Kruse concurred, dissented, writing an opinion holding said testimony inadmissible, also saying: “I think also that there was no consideration for the agreement which is the basis of defendants’ counterclaim in this action. By the terms of the alleged agreement entered into between the deceased and the defendants, provision was made for ample payment by the deceased for all services rendered to her. Her board and that of her maid, the care of the horses, wagons and coachman were all provided for by the terms of the oral agreement. It is not suggested that the payments so agreed to be made by the deceased were not ample for the services rendered, and I think it cannot be determined, even construing the evidence of the defendants most favorably to them, that there was any consideration for the alleged agreement on the part of the deceased to will or transfer to them upon her death property of the value of between $50,000 and $60,000. Finally, I conclude that the defendants did not establish their alleged counterclaim by such proof as would entitle them to recover under the rule as laid down by the Court of Appeals in Hamlin v. Stevens (177 N. Y. 39).”
On appeal to the Court of Appeals (202 N. Y. 122) the judgment of the Appellate Division was reversed by a unanimous
In this proceeding tne main witness for the petitioner is her husband, D. Halsey Piffard, sixty-four years of age, who, having known Miss Arthur all her life, married her when he was upwards of fifty, he then having no property or business and never having had any since. His testimony, direct and cross, takes up 249 pages of the record.
The other testimony was given by a sewing woman, ÜL ss Mary E. Hennessy, who went to take care of Mrs. McMillan in 1900 and was with her for five weeks. She testified that on the first day of their acquaintance Mrs. McMillan said to her: “I have divided my silver during my lifetime so I know where it goes.” “And I said to her, ‘Is not Mrs. Piffard your daughter ? ’ She said, No, she is my sister’s daughter. ’ I said,
‘ Then she is not your only heir % ’ She said, c Ho, I have five living relatives. I have Mrs. Piffard and my brother John, and he has three children, but Mrs. Piffard lived with me since her mother’s death and at my death Mrs. Piffard is to inherit one-half of my property and my brother John and his family the other half, and she gets the greater share because she gets the bulk of this furniture.’ ” On the next day she testified that she asked Mrs. McMillan if she did not own the house. “ She said ‘ no, Mrs. Piffard put her money in the house and it was all her money that bought the house, ’ and she said ‘ I agreed to furnish it and contribute toward the maintenance of it as she did with me when I lived at Geneseo. ’ She said that before then she had kept house at Geneseo and Mrs. Piffard had lived with her and given her a yearly allowance. She said, ‘ I kept house and Mrs. Piffard gave me an allowance yearly and now I am in feeble health and I do the same by her, I contribute. ’ She did not say what amount.
Ellen Long, a nurse, testified that in April, 1899, Mrs. McMillan was talking to her about moving over to the Piffard homestead, and she said “ that she had agreed to leave enough property to maintain * * * the Piffard home. She told me about Mrs. Piffard going over to buy the home and how she agreed to leave property enough to maintain that home just the same after her death as she promised to now.”
Upon the trial of the replevin suit four years earlier she had not testified to any such conversation.
Elizabeth Schneider, cook, testified that Mrs. McMillan in conversations in reference to her relations with Mrs. Piffard “told me she was very dear to her, just as her own child, in place of her own child who had died. * * * I don’t think she mentioned the furniture in particular. She told me everything would be Mrs. Piffard’s. She used the word ‘ everything.’ We were talking about a very beautiful picture that was in Mrs. McMillan’s room. * * * She said it would be Mrs. Piffard’s when she was gone and that everything would be. ” This testimony does not seem at all to corroborate the contract alleged.
Hannah Roberts, a nurse, was at Piffards five or six weeks in 1901. She was asked, “What did [Mrs. McMillan] say about the furniture ? * * * A. She said she had taken
it there to furnish the house while she was living, and when she got through with it Mrs. Piffard had it. * * * Q. What did she say to you in reference to an agreement she had made
This is the utmost of the corroboration of Mr. Piffard’s story. There is not a scrap of paper containing any support of the alleged contract, although a number of letters of Mrs. McMillan are in evidence. The judgment, therefore, depends upon the evidence of Mr. Piffard.
It is urged that his testimony is incompetent under section 829 of the Oode of Civil Procedure, as “a person interested in the event.” I am not willing to say that he comes within the condemnation of the statute as a party legally interested in the ' event, but I do think that he was an interested witness and that as such his testimony cannot be regarded as of a quality sufficient to support the judgment under the rule laid down in similar cases.
In Hamlin v. Stevens (177 N. Y. 39) the claimant’s mother testified to the alleged contract. Judge Vann said: “Assuming that the trial judge believed that the appellant and his mother intended to tell the truth, still, owing to their deep interest, it would be unsafe to base a finding on their testimony when it may be followed by such grave consequences. Such contracts are dangerous. They threaten the security of estates and throw doubt upon the power of a man to do what he wills with his own. The savings of a lifetime may be taken away from his heirs by the testimony of witnesses who speak under the strongest bias and the greatest temptation, with all the dangers which, as experience shows, - surround such evidence. The truth may be in them, but it is against sound policy to accept their statements as true, under the circumstances and with the results pointed out. Such contracts should be in writing, and the writing should be produced, or, if ever based upon parol evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses. * * * We wish to be emphatic upon the subject, for we are impressed with the danger, and aim to protect the community from the spoliation of dead men’s estates by proof of such contracts through parol evidence given by interested witnesses.”
In Hungerford v. Snow (129 App. Div. 816) the husband testified to the oral agreement.- While the court held that his testimony was competent, it held that the defendant had failed to establish the oral agreement by such clear and convincing evidence as is required under the rule applicable to cases of this kind. In Scheu v. Blum (119 App. Div. 827) the court said: “ The existence of the alleged contract of employment depends upon the testimony of her husband. There is no substantial corroboration. Contracts of this kind are looked upon with suspicion and whenever sought to be enforced are closely scrutinized and never sustained unless the evidence is very satisfactory. [Citing cases.] The plaintiff’s husband can hardly be said to have been a disinterested witness.”
In Dueser v. Meyer (129 App. Div. 598) the testimony was given by the plaintiff’s wife and the judgment was reversed upon the ground that such claims have to be proved by clear and convincing evidence of disinterested witnesses before they can be allowed.
In Butcher v. Geissenhainer (125 App. Div. 272), where the claimant and the witness were sisters, the court said: “It may be granted that there was some evidence tending to establish the contract, and in an ordinary case enough to go to a jury. But the Court of Appeals has established the rule that in this class of cases the testimony must be not only clear and convincing, but of the clearest and most convincing character, and given or corroborated in all substantial particulars by disinterested witnesses, and it must follow that in order to take such a case to a jury more is required than will ordinarily suffice.” And the judgment was reversed.
In White v. Devendorf (127 App. Div. 791) the rule was applied to the testimony of relatives.
It is not necessary to reject Mr. Piffard’s testimony entirely.
The court found that Mrs. McMillan neglected and failed to comply with the terms of her contract by omitting and neglecting to pay the sum agreed upon for the maintenance of said joint home and by neglecting and omitting to furnish and maintain for the use of said household the team, coachman, carriage and equipment for the year beginning June 1, 1903, and ending June 1, 1904, and by reason of said failure and negléct became indebted to Mrs. Piffard in the sum of $1,600, less the sum of $156, the value of the board of which Mrs. Piffard was relieved during said year, leaving a total of $1,444, and has made the same finding for each of the four years down to June 1, 1907, which would make a total of $5,776. We think that justice would be done by accepting so much of the testimony as would establish the contract so far as it related to the mutual obligation
Therefore, the tenth, twelfth, sixteenth, thirty-fourth and fortieth findings of fact should be modified, thirty-second and forty-eighth reversed, and the fourth conclusion of law modified.
The decree appealed from should be modified by providing that the amount justly due to the petitioner is $5,776, with interest on $1,444 from the 1st day of June, 1904; interest on $1,444 from the 1st day of June, 1905; interest on $1,444 from the 1st day of June, 1906, and interest on $1,444 from the 1st day of June, 1907, and as modified affirmed, without costs.
McLaughlin, Scott and Hotchkiss, JJ., concurred; Ingraham, P. J., dissented.
Dissenting Opinion
The statement of the testimony by my brother Clarke and the authorities cited by him establish, I think, that no contract was proved which would justify the court in enforcing it against the personal representatives of the estate. The only substantial evidence of any contract came from the plaintiff’s husband, who had no occupation or business and no property, and apparently was supported entirely by his wife, the petitioner in this proceeding. While his testimony may not be incompetent, he was certainly as much interested as the petitioner, whose testimony is incompetent, and as I read it it fails to establish any contract by the decedent to live with the peti
Decree modified as directed in opinion, and as modified affirmed, without costs. Order to be settled on notice.