146 N.Y.S. 133 | N.Y. App. Div. | 1914
This is an action brought by the executor of H. Victor New-comb, deceased, for the construction of the will of the latter with respect to the effect, on a claim for services made by the defendant against the estate, of a legacy to her and an annuity for her in the will and to have the amount of her claim for services adjudicated in the event that it shall be decided that the acceptance of the legacy and annuity does not constitute a payment of her claim for services.
The testator died November 2, 1911. On the 10th -day of June, 1912, the defendant presented to the executor a -duly verified claim against the estate for professional services as nurse to the testator from April 29, 1901, to April 29, 1908, at $30 per week, and from the last-mentioned date to November 2, 1911, as nurse and housekeeper at $40 per week, aggregating $8,880, less a credit of $1,300.41 for “payments made on account.” By a formal notice to the attorney for the defendant on the 10th day of July, 1912, the executor offered to allow her claim if she would release all claims as legatee and annuitant under the will, and in the event of her refusal so to do he rejected it. The action was commenced on August 14, 1912.
The testator had a wife and son, but they did not live with him. He maintained a separate household, with several servants, where he resided alone. On April 26, 1901, when he was about sixty years of age, he met with an accident by which one of his arms was broken, and on the same day the defendant, who was a professional nurse, was summoned to care for him, and she remained a member of his household
“Should Jeanne La Eoe, Eegistered Nurse) remain in my employ as professional nurse, as she has done since my severe accident and illness in 1907, I give and bequeath to her Four thousand ($4,000) dollars, and a net income of Fourteen Hundred ($1,400) Dollars, per annum, to be paid by my executors in quarterly installments, and the principal of the fund necessary to produce such net income, shall be a first lien and mortgage upon my property. My relatives and close friends, herein mentioned and otherwise, know her fidelity and capacity in acting also, as housekeeper for me, thus enabling me to receive and entertain them and others, and promoting thereby, my welfare, comfort and contentment, for I would not otherwise have been able to lotik after servants and the running of an establishment without a capable and honest woman, for no man can perform such duties so well as a woman can, in my estimation. This bequest attaches only, however, in case of her caring for me as a professional nurse, in my old age, until my death. And in order to carry out said bequest, I give to my executors herein nominated, or those who qualify, in trust in money derived from my estate, an amount which, in the opinion and discretion of my executors, will produce, when safely invested by them, an income equal to Fourteen Hundred ($1,400) dollars, net per annum, to be paid by said executors quarterly to said Jeanne La Eoe for her natural life for her sole use, contingent upon her remaining with, and caring for me during my life, as above mentioned, and my executors shall act for her as trustees until they shall select a trust company to succeed them as trustee, thereby relieving them as trustees, and said trust, company • shall pay to her said sum of Fourteen Hundred ($1,400) dollars, per annum, in quarterly payments, during her life, and upon her death, the principal of said fund shall revert to my residuary estate.”
The defendant claimed both the legacy and the annuity and has received, accepted and’retained part of each. By a second amended answer, her last pleading, the defendant admitted
There is no evidence of an express agreement between the testator and defendant with respect to her wages; but another nurse who was called first to attend the testator and remained for a time as day nurse after defendant came and was on duty nights, testified that defendant told her the testator agreed to pay her twenty-eight dollars per week.
The trial court decided that the legacy and annuity given to the defendant by the will were not intended as a payment of any claim she might have against his estate for services and decreed that she is entitled to the annuity as provided in the will and awarded judgment in her favor for the balance unpaid on the legacy, and for the balance found by the court to be owing to her on the theory that her services were worth $30 per week, which plaintiff conceded to be the reasonable value thereof for the entire period. The total amount earned by her during that period on the basis of $30 per week would be $7,054.28. There was no express evidence other than the concession made in her answer with respect to the amount she was paid to apply on her services except that two of the checks introduced in evidence by the plaintiff drawn by the testator to the order of the defendant, aggregating $135, showed on the
The learned counsel for the plaintiff contends, therefore, that his client has been prejudiced by being deprived of an opportunity to offer evidence bearing on the amount of money received by the defendant from the testator. In the view we take of the case we do not deem it necessary to decide that question. Aside from the provisions made for her in the will it is inconceivable on the evidence that defendant would have allowed her claim against the testator to accumulate to the extent claimed, or that he would have permitted it. It is not probable that he would make gifts to her from time to time by checks and cash if he was indebted to her for wages. He left an estate valued at about $70,000. During the entire period in question his monthly balance in a single bank in the city of New York in which he had a deposit account subject to check ranged between $4,709.31 and $23,091.66, and on Octo ber 30, 1911, three days before his death, was $11,142.08, and on November 29, 1911, $10,642.08; and at times he had additional funds on deposit in other banks. He appears to have
She does not claim to have kept any account at the time of the amount owing to, or received by, her for wages; but she claims to have kept an account of the disbursements she made for the testator. The attorney for the plaintiff, Benjamin Patterson, who was the attorney for the testator, testified that on the 11th day of May, 1911, which was less than six months before the death of the testator, the defendant reported to him that the testator had had a serious attack, and she was afraid he would die, and asked him whether she could “recover a claim ” which she had against the testator “ for $1,250 wages ” in the event that the widow should contest the will and succeed, to which he replied “why, certainly, and why have any such question; if he owes you $1,250, and you ask him for it, he
The will was drawn by Patterson, who testified that he had previously drafted wills for the testator, only one of which was executed, but that the defendant was not mentioned in any of them, and that after the execution of the last will he discussed its provisions with the defendant, and she said she was pleased that the amount she was to receive therein was increased over the amount given her by “the other will.” She did not deny this. There is no other evidence relating to the execution of a former will. The testator may have executed a former will making provision for defendant, as indicated by her said statement; but in any event it is fairly to be inferred from her statement that he represented to her that he had done so. All of the evidence has been examined and considered in the light of the arguments of counsel thereon, but we do not deem it necessary to state it further.
I am of opinion that the evidence establishes two defenses to defendant’s claim for services.
First. The learned counsel for the plaintiff argues with much plausibility and force, on the authority of Conkling v. Weatherwax (181 N. Y. 258, 268), in view of the form of defendant’s pleading by which she sets forth an account of moneys received and disbursed for appellant, as well as moneys received to apply on her wages and also moneys advanced for his account, and claims as a balance due and owing the difference between her wages for the entire period at the rates claimed by her and the total amount received not only to apply on wages but for wages and all other purposes, after deducting therefrom all disbursements which she claims to have made on his account,—r that the defendant has assumed the burden of proof as to the payments made to apply on her account for wages. It is immaterial, however, who had the burden of proof, for the reason that if there was no change from the original contractual relations between the testator and the defendant, the evidence, viewed in the light of the authorities applicable to such claims against an estate, fairly shows that she was paid in full, or at least substantially so, and down to within a comparatively short period of his death, the same as
Second. It is to be borne in mind that the testator was neither related to the defendant by blood, nor by marriage, and was under no moral obligation to make any provision for her in his will. The annuity he gave her approximates her annual earning capacity. According to her claim, he owed her for wages at the time he made the will about $2,252.15. It is evident, and the defendant’s admissions’ prior to presenting her claim tend to show, that the defendant and the testator had prior to that time arrived at an understanding by which she was to make her home with him until his death, and that the legacy of $4,000 was intended to cover any indebtedness for wages then existing, or that might remain at the time of his death, and that by the annuity she would be provided for on substantially the same basis for the period of her life. The evidence gives rise to a presumption of a change in their contractual relations long before the will was made, by which she was to remain with him permanently and be compensated, over and above the moneys she might need to draw from time to time, by the legacy and annuity. Of course, if he failed to provide for her by his will, or revoked any will so providing for her, she would be entitled to recover for her services if she had not been paid in full. Here the provisions of the will relating to the legacy and annuity are preceded by the usual direction for the payment of debts which is ordinarily deemed sufficient to render the general rule, that a legacy to a creditor extinguishes an indebtedness which it equals or exceeds, inapplicable (Matter of Arnton, 106 App. Div. 326, 329; Reynolds v. Robinson, 82 N. Y. 103, 107; Williams v. Crary, 5 Cow. 368; 4 Wend. 443, 447; 18 Am. & Eng. Ency. of Law [2d ed.], 769, 776); but this was not an unliquidated claim, and the legacy is payable at once and the annuity commences at once, and they far exceed the claim, which facts distinguish the case, on one important ground, at least, from Phillips v. McCombs (53 N. Y. 494), and both the legacy and
These views require a reversal of findings 11, 12, 14 and 20, and the substitution of a finding of payment, and the reversal of the 1st conclusion of law and that part of the 3d conclusion of law to the effect that defendant is entitled to recover the balance owing for services, and the conclusion that defendant is entitled to recover costs and an additional allowance, and the substitution of conclusions that the defendant is not entitled to recover for services, otherwise than by recovering the legacy and annuity, and that plaintiff is entitled to recover costs to be taxed; and the judgment is modified accordingly, with costs to appellant.
Ingraham, P. J., McLaughlin, Clarke and Scott, JJ., concurred.
Judgment modified as directed in opinion, and as modified affirmed, with costs to appellant. Order to be settled on notice.