Opinion
November Term, 1901.
Judgment affirmed, with costs, upon the opinion of the referee. — Goodrich, P.J., Bartlett, Woodward, Hirschberg and Jenks, JJ., concurred.
The following is the opinion of the referee:
This was a reference of a disputed claim for services made against the estate of the deceased by a sister of the intestate. The only testimony was offered by the claimant, the counsel for the administratrix relying upon the facts as brought out in cross-examination and upon the law which he deemed applicable. I have made a careful examination of all the cases cited in the exhaustive and learned brief submitted by the very able counsel for the estate. After giving the matter my fullest and most conscientious consideration, I have reached the clear conclusion that not one of the cases cited by the counsel for the appellant is quite as far-reaching as I should have to go if I were to decide against this claimant. The claim is for services rendered and the facts are briefly as follows: The first wife of the intestate died in childbirth on the 3d day of May, 1892, at No. 141 North Sixth street, Brooklyn, leaving two children, both boys, one aged about five years, and the other only thirteen days. The claimant, one other sister, and also several brothers lived on the premises, a part of which was also occupied by a tenant not related. The equity of the property was owned by the intestate and these brothers and sisters in common, the same having descended to them from their father. The household seems to have been supported by the intestate, and his wife acted as housekeeper during her lifetime. Shortly after her death, according to the testimony of Richard D. Scott, a conversation took place between the intestate and the claimant, in which he (the intestate) "asked Nellie to stay there and take care of his children; he said he had to have some one to stay there and look after them and he would be very much pleased if she would undertake to raise the boys. She said she would stay there and do the best she could for them; and he promised, if she did, he would provide for her as long as she lived, and in the event of his death he would see that she was amply repaid for her trouble." The claimant, who was the Nellie mentioned in this statement, did remain in the household. The intestate did not get any one else to stay there and look after his children. It appears that the claimant faithfully executed the task which she had assumed, bringing up the children, caring for them day and night, year in and year out, in sickness and in health, and it seems that the younger of the children was a very delicate child, and in its second summer even the attending physician despaired of its life. She also acted as housekeeper, doing much of the household work with the help of one maid, whose services, however, were not permanently engaged, and also taking charge of the cottages rented by the intestate during a number of summers. It seems to me, apart from any question and agreement, that these services were out of the ordinary, and were not of such a nature that they might be expected even from near relatives residing in the same family. But in my opinion the agreement has been sufficiently proved, under the opinions in Robinson v. Raynor ( 28 N.Y. 494) and Collier v. Rutledge (136 id. 621). The conversation showed that the intestate did not expect that the services would be rendered without extra compensation, in addition to providing a home for the claimant. The claimant's understanding of the situation she was of course debarred from testifying to, and appears only from the conversation above quoted, and from cross-examination of the same witness, Richard D. Scott, who, in answer to a question of the respondent's counsel, reiterated the conversation, and stated that she assented to the proposition. The testimony of the witnesses Clairey, Smith and Seaman, while it does not bear directly upon the original agreement, at least negatives the idea that the claimant was rendering services to the intestate without any expectation on his part that she would receive compensation therefor. Carrying out this view of the situation and the relations between the parties is the further important testimony of the half brother of both claimant and intestate, Richard D. Scott. About a month before his death the deceased, in conversation with the witness, told him that he (the intestate) realized that he was a very sick man and that he had made promises to take care of his sister and he had not fulfilled those promises, and he felt that the time had arrived when he should make some provisions to compensate her for the trouble she had taken with his children, and he instructed the witness to go to the office of the Mutual Life Insurance Company and obtain the necessary blanks, and that his intention was to change the beneficiary from his own estate to the name of the claimant, in the policies, aggregating fifteen thousand dollars ($15,000), and that this very important action was not taken for the reason that some two weeks elapsed before the necessary blanks were obtained, and when they arrived the intestate was so sick that the witness did not dare to speak to him about them. My conclusion is that a valid agreement was entered into between the parties; that the terms were not carried out and that the claimant is entitled to compensation. What this compensation shall be is determined in part by the preliminary statement made by the deceased, that he would have to have some one stay in his house and look after his children, and as he seemed to prefer that the claimant should undertake the responsibility, that he intended to pay her at least as much as any one else; and secondly, there having been a breach of the contract that she is entitled to compensation upon a quantum meruit. The decisions above cited seem to uphold this doctrine and it was approved in Holcomb v. Harris ( 42 App. Div. 363), and in the opinion in the same case in the Court of Appeals ( 166 N.Y. 257), although the judgment was reversed on other grounds and with regret by the higher court. The testimony showed that the services rendered were worth at least as much as claimed, and I, therefore, find for the claimant for the full amount, with interest.