159 N.Y.S. 947 | N.Y. App. Div. | 1916
Julia L. Sutliff presented a claim to the administrators of the estate of James D. Clyde, deceased, for the sum of $3,374.54, with interest on $400 of this amount from January 29, 1912, this claim being based upon eight different items. This claim was duly rejected by the administrators and a stipulation was made that it might be heard on the final accounting. Passing over the matters of practice, the administrators petitioned for
The claim, as presented, was, first, table board, January 1, 1897, to April 1, 1904, 378 weeks at the agreed price of $3.50 per week, $1,323; second, table board at agreed price of $3.50 per week and rental and care of room, washing and mending worth $1.50 per week from April 1,1904, to December 4, 1913, less 7 weeks’ absence in 1907, in all 496 weeks, at $5 per week, $2,480; third, extra labor caring for decedent during illness from June 1, 1907, to April 1, 1913, in all seventy months, reasonably worth $10 per month, $700; fourth, care and nursing of decedent night and day during ■ six months of his last illness, reasonably worth $25 per week, 26 weeks, $650; fifth, assisting in care of decedent during eight weeks of his last illness, reasonably worth $10 per week, $80; sixth, cash advanced for necessaries during his last illness, $25.33; seventh, promissory note, $400, and interest from January 29, 1912, interest having been paid 'by decedent to that date; eighth, board of two guests 10 weeks each and one guest 8 weeks, in all 28 weeks, at $3.50 per week, $98, a total of $5,756.33. On this latter amount the claimant admitted credits amounting to $2,381.79, leaving a balance claimed of $3,374.54.
The learned surrogate held that this claim, in so far as it
It appears from the account submitted by the claimant that beginning with the 12th day of November, 1907, and continuing throughout the balance of his life, Dr. Clyde changed the policy of paying in groceries, taxes, etc., and made cash payments which appear to aggregate substantially the amount of the board at the agreed price, many of the items being the exact amount of the board for the intervals of time between payments, and it is very evident, from the claimant’s own showing, that Dr. Clyde intended to and did pay his board in the agreed amount of three dollars and fifty cents during his lifetime, and the only excuse for making the claim for board was to give some sort of foundation for the testimony as to the other items making up the claim. Starting with the conceded fact that Dr. Clyde had boarded with the claimant’s mother and with the claimant for a long term of years; that Dr. Clyde had been in a measure a member of the claimant’s family since she was a girl of ten years of age, and it was comparatively easy to get neighbors and relatives to testify in a general way to little acts of courtesy, such as helping Dr. Clyde to put on his coat, assisting him to get up stairs, raising the clothes line to permit him to pass under, with some references to washing, etc., due to his lack of control over his bowels and urinary organs, and to draw the inference that these services were continuous during the periods for which the claim was made, and it is upon this class of evidence that this claim has been approved. With the fact out of the case that Dr. Clyde had been a boarder in the claimant’s family for many years, paying his board with comparative regularity, as clearly appears from the evidence supplied by the claimant’s own account, there would be no evidence worthy of consideration to support the great bulk of the claim, and the obvious purpose of including all of these items in reference to table
It may be conceded that the evidence tends to support the claim for board of the deceased at three dollars and fifty cents per week, but it is equally clear from the claimant’s admissions in the record that Dr. Clyde paid his board right up to the very week of his death, his administrators satisfying the demand for the final week; and the effort to hitch on to this legitimate transaction the claims made for alleged room rent and care is not free from that suspicion which justly attaches to claims extending over a long period of time and which remain unasserted until after the death of the person who is alleged to have incurred the obligation. There are, undoubtedly, some considerations of natural justice which would have warranted Dr. Clyde in providing a larger compensation to the claimant; but the record before us does not justify the conclusion that there was any expressed or implied contract or promise on his
The decree, in so far as appealed from, should be reversed.
All concurred, except Kellogg, P. J., and Howard, J., who dissented.
Decree, so far as appealed from, reversed, without costs. The court disapproves of the finding that the deceased obligated himself to pay the items in dispute.