Rock v. Rock

105 A.D. 157 | N.Y. App. Div. | 1905

Smith, J.:

While the rendition of service of some value by the claimant to the decedent is shown, that such service was rendered under an agreement to pay therefor is not, in my judgment, clearly proven. The only testimony of the decedent’s promise to pay is that of the claimant’s husband who was the son of the decedent. The promise as testified to by him is not clear or definite. The claimant and her husband left the decedent about six months before her death. During the six years while they were on the farm, however, there must have been numerous settlements between the deceased and the claimant’s husband, and not once during all that time or until her death, was any claim made for any extra services rendered. While the claimant was at the house of the deceased she gave birth to four children. The sole care which she received during those times was rendered by the decedent. In this class of cases, where claims are made against an estate, which were not presented in the lifetime of decedent, the courts seem to require clear proof from disinterested witnesses that the services were accepted with an intent to pay therefor. This requirement of the law claimant has failed to satisfy. The inference seems clear that the assistance given, both by the claimant to the deceased and by the deceased to the claimant, was not in the nature of service under a contract of employment, but was such assistance as would naturally be given by those recognizing the obligations of relationship. and the promptings of affection for which no other compensation would be expected than such as might be voluntarily offered. That the assistance here rendered was of this nature would seem to be indicated by the fact that no claim was made therefor until after the provisions of decedent’s will had been made known. The judgment should, therefore, be reversed.

All concurred.

Judgment reversed on the law and the facts, referee discharged and new trial granted, with costs to appellant to abide the event.