Valentine v. Valentine

4 Redf. 265 | N.Y. Sur. Ct. | 1880

The Surrogate.—As to the first exception, which relates to the price of the burial plot, while I should regard it unreasonable if creditors of the decedent had intervened, yet, as the matter relates only to the rights' of next-of-kin, under the proof, I am of the opinion that the evidence does not show an unreasonable expenditure. In the first place, the estate, after the payment of debts, amounts to about $13,000, and the expenditure was made by two of the next-of-kin, acting through a third, three others not objecting, and presumably consenting. There is no evidence that a suitable lot could have been procured at aless sum. Hence the auditor was compelled to allow the sum expended, or disallow it altogether. I am of the opinion that while the law is well settled that' the funeral and burial expenses should be according to the decedent’s condition and rank in life, and the amount of the estate, yet the concurrence of most of the next-of-kin is strong evidence of the suitableness of such expenditure. The exception should be overruled. The second exception should be overruled, for the reason that when the decedent was asked to pay board she did not deny her liability or refuse to pay, but recognized the liability, and promised to pay. It is well settled, by well-considered and numerous authorities, that where services are rendered between members of the same family, no presumption of a promise to pay results. But that is in case there is no evidence of an intention to charge, and pay. (See Bowen v. Bowen, 2 Bradf., 336, and cases there cited.)

In this case there is also evidence that other members of the family were charged for and paid board, aiid I am of the opinion that under the proof, the claim of the mother, one of the administratrices, was sufficiently proved and properly allowed, and that the exception should be overruled.

The third exception should also be overruled, for the reason that the duly verified account of the administratrices, together with the duly vouched claim of the claimant, was at least prima facie evidence of its genuineness, and required proof on the part of the contestant, tending to show that the claim was not genuine, or was improperly paid by the representatives of the estate.

I know of no rule which demands stronger verification of a claim against an estate because a relative happens to present it, and I am entirely clear, that the law raises no presumption that the husband is liable for' the support, maintenance or cure of his wife’s sister.

The report must be confirmed.

Ordered accordingly.