126 N.Y.S. 165 | N.Y. Sur. Ct. | 1910
S.Eo controversy exists regarding the account filed hy the administrator for judicial settlement. A claim, however, against the estate, amounting, as filed, to the sum of $921, was presented by Mrs. Colgrove, a daughter of decedent. Certain items of such claim were allowed and paid by the administrator; the legality of various other items was doubted. Consequently, a stipulation was filed, pursuant to the statute, providing for the determination of such items on judicial settlement. The validity of such items is contested by Mr. Andrews, who, through the instrumentality of a receivership, has succeeded to the interest of Mrs. Sheridan, a daughter of decedent, in the estate.
Among the controverted items is one of fifty-six dollars for clothing furnished by the claimant to- decedent. While the evidence quite clearly shows that various articles of wearing apparel were provided by the claimant for the decedent, yet the amount and value thereof are left entirely problematical and altogether too vague to support a finding of liability against the estate. Moreover, the evidence tends to show that such articles were furnished as gifts, rather than under any express or im
Decedent was a widow, her husband having died in 1907, leaving no estate. The only property owned by the decedent at the time of her decease consisted of a house and lot in the village of Allegany, which has been sold by the administrator in proceedings for the disposition of real estate for payment of debts. The portion of the proceeds of such sale remaining for distribution, subject to commissions and expenses of this accounting, is the sum of $524.
It appears, inferentially at least, that, several years prior to the father’s death, the two daughters undertook to provide in equal shares such funds as might be required for the support and maintenance of their parents, they having no income whatever. Under such agreement, claimant furnished ten dollars- and forty-five cents more than did her sister, After the father’s death, the claimant furnished for the mother’s support the sum of ninety-three dollars, the sister not then contributing. The decedent kept, in her own handwriting, a memorandum-book in which she gave each of the daughters credit for the various amounts advanced by them, respectively.
During the entire period covered by the claim, the claimant resided in the village of Salamanca, was a physician and somewhat actively engaged in the practice of her profession. In the-fall of 1907, the decedent met with an accident, resulting in the fracture of one of her arms; claimant was immediately notified and went to the decedents residence, assisted to some extent in the operation for reducing the fracture, remained several days caring for the decedent and then removing her to claimant’s home in Salamanca, where she remained until the following Eebruary. During that period, claimant gave decedent’s injury such medical attention as was required, dressing and bathing the broken arm as frequently as necessary. In the month of O'ctober of .the same year, decedent went to the home of the
The principle which precludes a recovery for services rendered and benefits conferred between members of the same family has no application to the facts in this case. Decedent possessed sufficient means to care for herself and to pay any reasonable expense incurred for that purpose. Claimant did not. reside with the decedent but, as already stated, was engaged in, the practice of her profession in another locality. When decedent became incapacitated, ‘ first from the inquiry and later by her final illness, claimant removed her to her own home in Salamanca, treated and cared for her professionally, rendering-services for her, not only laborious in their character but of the greatest importance and value to the decedent, foregoing to a. large extent her professional employment, giving her time and skill to the care of her mother in the capacity of nurse and physician. ¡No such condition of reciprocity or mutuality of benefits existed in this case as is contemplated by rule invoked in opposition to a recovery for the value of these services. The presumption of gratuitous services is not based so much upon the mere incident of kinship as upon the fact of reciprocal bene
The distinction between the two cases cited is marked and important. Under the rule established by the former case, proof of the fact of the family relationship gave rise to the presumption of gratuitous services, and such presumption constituted a ■defense to a claim for services rendered between persons so circumstanced ; and the burden of overcoming such presumption was placed upon the claimant. Accordingly, under the authority of that case, one seeking to recover for services so rendered assumed the burden of proof of establishing, not only the fact
Under the rule established by Moore v. Moore, the proof of such family relationship does not of itself constitute a complete defense; but other facts and circumstances must be established by the contestant, showing that it was the design and intention of the parties, at the time of the rendition of the services, that the same were rendered gratuitously. Under the former case, the burden rested upon the claimant of overcoming the presumption arising from family relationship. Under the later decision, the burden of proof cast upon the contestant of establishing other facts and circumstances, in addition to that of the family relation, sufficient to overcome the general presumption that, from the fact of the rendition of meritorious service by one and their acceptance by another, an agreement for compensation will be implied.
The facts in this case, under the rule in Moore v. Moore, do not constitute a defense to the claim of the claimant. These facts are similar in many important particulars to those in Matter of Delaney, 2 Gibbons Sur. Rep. 470, decided by this court and where a recovery was permitted.
All of the claimant’s demand not heretofore paid by the administrator, aside from the one item of fifty-six dollars for clothing, is allowed and to be paid by the administrator from the funds of the estate remaining in his hands for distribution.
A decree will be entered in accordance with the foregoing findings of fact and conclusions of law.