49 Misc. 199 | N.Y. Sur. Ct. | 1906
This is a hearing upon a claim made against the decedent’s estate. The claimant herein had, previous to her marriage, resided with the deceased and his wife. Although
As the deceased progressed with his illness he became ill-tempered and resorted to certain habits which were distasteful' to the claimant and her family. In consequence of the friction between the parties by reason of these facts, the deceased practically terminated the contract in question. He subsequently died, leaving a will which completely ignored the claimant.
The general proposition that, where services are rendered under the promise and expectation that they will be paid for by suitable testamentary provision and, upon it appearing that no-such testamentary provision is made, the person rendering the services is- entitled to recover for the same on a quantum meruit' is too well settled to need citation of authority.
The only proposition, therefore, to be considered is whether-the facts in this case bring it within the line of authorities under which the claimant is entitled to recover. The counsel for the erecutor -contends that, ¡as the -agreement was broken at the time that the clamant left the testator’s house, the Statute of Limitations then commenced to run. I am unable to agree
The evidence of disinterested witnesses plainly establishes the fact that the deceased had agreed to recompense the claimant for her care and attention to him 'by way of testamentary provision, -and he having failed to comply with this promise, the ■claimant is entitled to recover -the sum -asked for herein:
It has been suggested by the executor that under the prin•ciple that services between parent and child are presumed to be rendered gratuitously unless the contrary is shown, the claimant cannot recover. There are two ¡answers to this contention. In the first place, it cannot be -said that the claimant ■stood in the relation of an adopted daughter to the deceased. In the second place, the evidence shows that, irrespective of the. relationship of the parties, the -deceased had specifically promised to- pay the claimant by making ¡ai testamentary -provision for her.
The claim is, therefore, allowed -and findings will he signed ^accordingly.
Decreed -accordingly.