36 Barb. 128 | N.Y. Sup. Ct. | 1862
By the Oourt,
Jonathan Robinson, the respondent, is one of the administrators of his late father, David Robinson, deceased, and as such, presented his petition to the suiTOgate of the county of Suffolk, alleging that the intestate was justly indebted to him in his lifetime, and at the time of his death, in the sum of $3000, for work and labor, and also for cutting and hauling wood and cutting it up at the door, and carrying it into the house, for the use of the wife of the intestate, (the mother of the respondent,) and for supplying her with vegetables and waiting and attending upon her necessities during a period of 25 years, she during that time living alone and being deserted by her husband. That such services were rendered, and the labor performed, under the expectation and upon the promise of the intestate that he would devise to the respondent Jonathan Robinson his homestead farm of the value of $4000, and a tract of meadow of the value of $600, upon Moriche’s Island, in the county of Suffolk. That he died intestate seised of the said farm and lands, leaving other persons entitled to share the lands, as well as himself. He prayed for the usual process, to the end that he might prove his claim and retain the amount thereof out of the personal estate in his hands. At the return day of the citation the children and next of Mn appeared before the surrogate and denied the existence of the claim, and also set up the statute of limitations as a bar to the recovery thereof. Testimony was taken and the cause heard at length by the surrogate, who made his decree awarding the peti
The proof shows that the farm consisted of 500 or 600 acres of land with 50- or 60 acres cleared, the- residue being in wood. That the respondent Jonathan Robinson had the use of it during the period, or for a large part of the period of time for which the services were claimed. The father and mother lived in.a..state of separation,; she occupying a small dwelling house upon the farm, about 80 rods from the residence of the respondent; her children, 1 assume, having married and moved away. How or where the. husband lived, in the meantime, does not exactly appear, further than that he remained in the same neighborhood, and was. occasionally at his son’s. The services and necessaries furnished the mother consisted, of cutting and preparing fuel for her fire by some of the- sons of the respondent. Some one of the respondent's daughters also milking the cow and baking and washing for her,; while one of-the sons usually slept in the house at night. Similar services were also sometimes rendered her by her married daughters. She was furnished from time to time with some garden vegetables for her table, and a few quarts of corn, occasionally, to feed 10 or 12 fowls which she kept around her house. The respondent says he once bought a barrel of flour for her, and paid for it, and bought her necessaries a number of times at the stores for her, and paid for them himself. It also appears that during the time, he cut from the farm or land of the intestate cord-wood, from time to time, which the respondent says he paid him for. There was also some. slight evidence that he did some business for his father, but what it was does not appear. Indeed the father seems to have had no business of any consequence, and the surrogate, in rendering his decree, seems very properly to have regarded this part of the case as of no moment, and the services of little or no value. The claim, in its most favora
It is another circumstance worthy of notice, that no witness was examined who was present when any such agreement was made. It is not pretended that it was reduced to writing, and no one ever heard the parties engaged in any treaty concerning it. If it exists, it is to be inferred from the declarations of the intestate proved upon the hearing. The times at which most of these declarations were made are not given. If they were made after most of the pretended services were rendered, and towards the close of the intestate’s life, their effect to make out the agreement would be materially diminished. I now proceed to ascertain what they are. David Eobinson, a son of the respondent, heard his grandfather, after telling him, the witness, to take good care of things, say, “ it would soon all be father’s ; I intend to give it to your father, and it will eventually be yours and your brothers. This he said in relation to keeping cattle off the sprouts. I have heard him say father, when he had the farm, would have enough to pay him for his work he had done for him—services he had performed.” Lester Eobinson, another son of the respondent, testified: “ I had a conversation with my grandfather about working there, a great many times; he never paid me; said my father would have
Evidence was" given on the part of the appellants which must not he overlooked. John Raynor heard David Robinson, the intestate, say to Jonathan, the respondent, “ he had made proposals if-he. would do so and so, he could-occupy a portion -of the place. He was to take care of his mother and pay. the. rates. He said, if you' don’t, do it I shall' use other means. Jonathan; made no reply. This was 15 -years ago.” Ruth Baynor testified to the same fact, with this addition, that David said,:, “ when there is a barrel :of flour wanted I have got ity and' when there is fish wanted I have got that.” It is to-be.remembered, in this connection, that a single barrel of flour is.- all Jónathan claims to have furnished, his mother during the. entire 25 years. Bouker Robinson, a witness, “ was present at a conversation between Jonathan and the old man, who said to-Jonathan, he believed he had a bill against him, and if he. had -he'-wanted to-knew it. Jonathan said a number of times over he hadn’t: any claims, and father (the old gentleman) said he had agreed to support the old' lady and pay the taxes on the place, and if he had any charges against him he wanted to know it. • Jonathan made no reply.” Similar testimony was given by other witnesses. Jonathan Dayton, another witness, had a conversation with Jonathan less than a year before the old man’s death, when he told him" the old man had destroyed - his. will. He says, “ I told him I heard he had a bill against: the old man for $3000, and when the. old man died he intended to fetch it in. He said it was as big a lie as ever was told. They were making all this up to hinder the old man from giving me his property.” : At this stage of the case the respondent recalled David Robinson/and as his evidence corroborates that of the respondent himself, I will quote a part of it. “ Father,” he says, “ bought 3000 bushels of ashes and put on the farm. All the farming he ever did there did not pay expenses. He told grandfather he did not want to stay there, and grand
Mnott, Brown, and Sorugham, Justices.]
Without pursuing the inquiry farther, I conclude that the evidence is insufficient to make out the contract set out in the petition of the respondent, and if he has rendered any services, or furnished any supplies to his mother, for which he is entitled to recover upon an implied assumpsit, his recovery must be limited to such as were rendered and furnished within six years next before the death of the intestate.
The decree of the surrogate should be reversed.