McRae v. McRae, 3 Bradf. 199

McRae v. McRae

3 Bradf. 199 | N.Y. Sur. Ct. | 1855

The Surrogate.

The testator came to this country some thirty years since, and for the last twenty years was engaged in the manufacture of silk goods, in which business he was assisted by his children. It is in proof that he declared that his children in England should retain the property there, and his children in Hew York have the property here; that all his property in this country was the accumulation derived from the earnings of himself and the last named children; that it belonged to the latter, for they had earned it. A draft of a will was prepared, disposing of his property in favor of these children, with the exception of a mortgage of seven hundred dollars, but its execution was prevented by death. A claim is now advanced by the children for services rendered their parent after they attained their respective majorities. The deceased employed no clerks, and when asked for an *204allowance or salary by his children, gave them to understand that it would be all theirs: “ It will all be yours, let it lie.” In this expectation they continued to labor for him till his death, receiving no other compensation than their clothing and board, and pocket-money; with the exception of one child, whose expenses on a visit to Europe were paid by his father. I think th¿ case establishes the performance of work, labor and services under the expectation and mutual understanding of compensation by way of legacy. It'is true there was no special request, and no formal promise, but under the circumstances neither of these elements was necessary to establish a liability.' The parent availed himself of the services of his children after they attained full age, and excused himself from agreeing to a fixed compensation by holding out the idea that the fruits of their united labors would all be theirs on his decease. Such, doubtless, was his intention, but it was frustrated by death before he gave it formal and valid expression. Had a stranger labored for the deceased under similar assurances, he would doubtless be entitled to recover. The relationship existing between the parties rather enhances than detracts from the merit of the claim. It would certainly be a very hard case if the proceeds of the industry of these children, which they have been disappointed of receiving by legacy according to their parent’s intention, should- be distributed without evén allowing them- compensation for their services. These services'were not gratuitous, were not made without the' expectation of a return. H'or were they exacted by means of parental influence, nor received as a gift. The facts indicate enough to sustain a promise to pay; there is a" consideration to support such a promise, and the intention to pay in a particular manner having been undesignedly defeated, the agreed and substituted mode of payment having been prevented, the parties are left to enforce their rights as in the' case of an ordinary debt. In the case of Jacobson vs. The Executors of Le Grange, 3 Johnson R., 199, where a young man, at the request of his uncle, went to live with him, and the uncle promised to do by him as his" own child, and *205that he should be one of his heirs, and spoke of advancing money to purchase a farm for him as compensation for his services, the uncle having died without devising anything to . the nephew, though the latter had worked for him eleven years, it was,held that an action on an implied assumpsit would lie against the executors. The question as stated by the Court was whether the services performed were rendered with a view to any other compensation than such as the testator should voluntarily make by his, last will and testament. In Patterson vs. Patterson, 13 Johnson R., 379, the plaintiff, after he had come of age, lived with,and worked for his father, the defendant, who said he would reward him well and provide for him in his will. The action was prematurely brought, but the Court said: “ It is evident that the plaintiff is to be compensated for his services by a provision to be made for him by his father in his will, and of course that no . claim for compensation was to be made in his father’s lifetime. The defendant is bound to make, and it is to be presumed, will make such a provision for the plaintiff by his will as will do him perfect justice, and which may be perfectly satisfactory to him, or which in judgment of law may amount to a satisfaction. Should the defendant wholly overlook the plaintiff in his will, this would be such an act of injustice, that there can be no doubt the plaintiff might maintain an action, and recover a reasonable compensation for his services.” The principle governing these cases is, that there being evidence the services were not rendered gratuitously, but upon an understanding there should be compensation in a certain way, there is ground for an action when the compensation so intended has not been made. Where work is performed gratuitously in the mere hope or expectation of a legacy, no action will lie. The services are done on a mere faith or trust in the mind of a single party—'the compensation,. whether something or nothing, being left entirely to the volition of the person benefited. But this is far different from the case where the person for whom the work is done, promises to pay for it by testamentary provisions. (Snyder *206vs. Castor’s Adm’rs, 4 Yeates, 353; see Engleman's Ex'rs vs. Engleman, 1 Dana, 438; Roberts vs. Kidd’s Ex'rs, 1 Yeates, 209.) It would be a piece of gross injustice to deprive a party who had been promised compensation in that way, of all remedy, and it makes no difference whether the remuneration is prevented as contemplated, by accident or design. In either case there has been a failure to pay. I am therefore of opinion that the claims of the intestate’s children are valid demands against his estate. The amount demanded seems reasonable, and not having been controverted, I shall take it as a proper compensation.

It was urged on the accounting that the administrators should be charged with a depreciation in the value of some shares of stock in the Hudson River Rail Road Company. This investment was made by the intestate. The fact, of a fall in the market value of the stock is not of itself enough to charge the administrators. The circumstances should show affirmatively that they have acted in an unreasonable manner in retaining the stock, and that the failure to sell was unjustifiable. There is no proof authorizing such a conclusion, and the objection must therefore be overruled.

The intestate in his lifetime, made an advancement to one of his sons for the purpose of establishing him in business. If there be no real estate of the intestate, advancements are regulated by Sections 80, 81, and 82, 2 R. S., p. 98, and under these sections an advancement must be made with “a view to a portion or settlement in life.” It is insisted, however, that these sections do not apply because there is “ real estate of the intestate to descend to his heirs,” in the State of Hew Jersey. But I do not think that lands in another state or country come within the purview of these sections. The rule of descent is regulated by the law of the place where the property is situated, and it could not have been intended to introduce as an element into the adjustment of the estate of an inhabitant of Hew York, the various laws of other states where the intestate might have happened to hold realty. Our statutes are to be interpreted generally as applicable only to lands within *207the operation of our own laws, and to establish a different construction special words must be used to show a special intent. But even if the fact that the deceased owned lands in New Jersey avail to except this advancement from the. operation of the sections of the statute which regulate advances when there was no real estate that descended, the only result is that we are thrown upon another, part of the statute which regulates advances when the intestate left both real and personal estate, and which makes ample provision for charging advancements on the share of a child in his parent’s estate. (1 R. S., p. 754, §§ 23, 24, 25, 26). Where an advancement has been made to a child, it may on his decease before the death of his ancestor, be charged on the share which falls to his descendants (§ 23). The advancement made by the intestate to his son, H. G-. McRea, having been made for the purpose of setting him up in business, was given with “a view to a portion or settlement in life,” and therefore comes within the statutory provision to which I have referred. The other objections to the account were decided on the hearing.