146 N.Y.S. 353 | N.Y. App. Div. | 1914
The defendants’ testatrix and her husband were, in their old age, living alone at the village of Laurens in a house owned by her of the value, as appears by the appellants’ brief, of $1,250, and at the time of her death, February 21, 1911, she had personal property of the value of $517.83. ' The plaintiff, a nephew of the husband, quit his employment as clerk in a grocery store at Oneonta, where he was earning $10 a week, returned to Laurens August 24, 1903, and entered the family of the testatrix for the purpose of nursing her husband and assisting them, and continued in that service until March 3, 1904, when the husband died, and on March 31, 1904, he received $143 as compensation for those services. After the husband’s death he continued to reside with her until the time of her death, managing the place and taking care of her. The evidence of many creditable witnesses shows that she stated that she was to pay him therefor and that he was to. have all her property if he remained with her.
It appears by competent evidence that about March 1, 1910, she made a will. In the year 1910 she stated that she had made a will and willed her property to the plaintiff for coming there and taking care of her; that she had made Estelle Bis-sell (one of the principal devisees) the same offer that she made to the plaintiff — that if she stayed with her during the time she lived and took care of her she would have her property — and she would not do it, and she made plaintiff the same offer and when she got through he was to have her property.
From the fact that the plaintiff entered the household in the - first instance as an employee, and from the entire evidence in the case, it is clear that it was the understanding that he was to be paid for the services he rendered her, and was to have her property for taking care of her. During the time he earned some money working for others, which was used for - the support of himself and the testatrix and for maintaining the house. January 12, 1911, Estelle Bissell, a niece, came to the house and remained there, and on the 16th day of February, 1911, the testatrix made the will, .giving her property principally to her nieces, with a legacy of $100 to the plaintiff. The judgment upon all the facts is just and should be.sustained.
Judgment unanimously affirmed, with costs.