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(184 N.Y.S.) of this kind, evidence should be very clear that the services were performed by the claimant, expecting to be paid for them, and that the decedent so understood it or had good reason to believe he was to be charged therefor.” Bowen v. Bowen, 2 Bradf. Sur. 336; In re Jones, 28 Misc. Rep. 338, 59 N. Y. Supp. 893.
There is no satisfactory proof to my mind of a contract for or expectation of payment for the board of the deceased during a long period. During all that time the claimant paid him for such work as he did for her, and there is no proof that she during such period asserted any claim for board, etc., or that she asked Wesley to apply the value of his work on any claim of hers for board and services, or that she presented any bill or account for any sum which she expected to charge him. See Street v. Ransom, 62 App. Div. 519, 71 N. Y. Supp. 93. From all the testimony it is evident that Wesley lived there for a long time as one of the family of claimant. In her circumstances she had sympathy for her nephew and did his washing and mending and boarded him.
The whole tenor and import of the evidence is that up to a certain period she boarded him for nothing, without any expectation or intention on her part to charge Wesley, and with no understanding on the part of Wesley that he was expected to pay or would be charged for his board, etc. One of the witnesses called by the claimant, Mr. Chrysler, tells of a conversation with Wesley, in which she said she "would not board him any longer for nothing,” showing that for a certain period she had been boarding him for nothing.
The question arises as to when the board and services ceased to be gratuitous. Certain conversations are relied upon by the claimant as showing an implied or express contract between claimant and deceased. The claimant's husband, with all his interest in his wife's claim, may be expected to locate those conversations as near the beginning of the six-year period beginning January 1, 1911, as the facts would justify. On his direct examination no dates are fixed by him. His testimony is indefinite, to say the least. Taking his testimony all together, it is not clear that he heard any conversation which would support the claim earlier than about two years before Wesley went to the hospital. Wesley went to the hospital the first time June 19, 1916.
If there had been any intention to charge Wesley for board much earlier than that, and to bring that fact definitely home to Wesley, it is reasonable to conclude that the husband would have known of it, had it clearly impressed upon his mind, and been able to have been clear and positive about it, and to give dates and other circumstances. The Bender girl worked there from about September, 1912, to about September, 1916. Her testimony is very indefinite and uncertain. In one place in her examination she says she heard only one conversation about board, and at another says she heard the conversation about a year after she began working there—"about one year, I guess." In another she said she heard the conversation “two years ago; that's all.” That would bring the conversation after Wesley's death. Her testimony must be considered in connection with her appearance on the witness stand.
Witness Shufelt was asked in relation to conversation between claimant and Wesley about board, and stated on direct examination that it was six or seven years ago, which would bring it back to July, 1913, or 1912. Later, on cross-examination, he is asked: "Now tell us when the first conversation was.” Answer: "It was about five or six years ago and before that." The next question was: “Six years ago?" Answer: "And before that.” Question: "When was the first one?" Answer: "Eight or nine years ago.” Mr. Chrysler, when asked about a conversation about board, seems unwilling to fix the date further back than about two years before Wesley's death. After that he testifies that Wesley came to his house and endeavored to engage board.
Witness A. Becker testifies on his direct examination to a conversation between claimant and Wesley as to board, and getting another boarding place, and when asked on his direct examination, "When did you first hear a conversation of that kind?” he answers, “Oh seven or eight years ago.” That would bring the first conversation back to about July, 1912, or July, 1911. On his examination after an adjournment of about two weeks, he states that the conversations of the same nature occurred at earlier times, and in the latter part of his examination fixes conversations between claimant and Wesley at a time which would bring the conversations in the year following Wesley's death. Furthermore, in stating the date of Wesley's death, he places it at a later date than had been conceded as the date of death. It cannot fail to impress the court that, if his recollection was so faulty as to the most recent events, it clearly cannot be relied upon as to the dates of more remote events.
There was no evidence of any memorandum being made of any of the transactions or events. If in the earlier years Mrs. Haverly had any intention of charging Wesley, she had abundant means and opportunity of making it certain that he was to pay. If in the earlier years Wesley had not been staying there, and been making his home there as one of the family gratuitously, there would have been no occasion for any talk about her not boarding him for nothing any longer, or not wanting to be bothered with him any longer in her old age. Indeed, in the earlier conversations there was more stress put by her upon his finding another place to live, and her not being able to keep him any longer, than there was about his paying for his board.
It is needless to say that, in the effort to work out justice in this $2,000 estate, I gave careful attention to the testimony as it was given, and have later spent much time in analyzing the written record, as well as the mass of authorities in cases of this class. This case, however, presents some features which I do not find in any of the reported cases.
Upon all the evidence, and after hearing all the witnesses and weighing the testimony, I am satisfied that up to a certain period the claimant's board, lodging, and services were gratuitous, and so understood by claimant and her nephew. In fixing the period, I must, of course, be guided by an analysis of the evidence, the variations as to dates and years, taking into account the interest of the witnesses, the inaccuracies and indefiniteness of testimony. If a witness swears that he does
(184 N.Y.S.) not know with any certainty when a certain thing took place, and especially where he is shown to be not disinterested, and where he says it took place, for instance, three, four, or five years ago, the court is not compelled in this class of cases, to infer the date most favorable to the side on which he shows his interest, unless upon his whole testimony, or his testimony taken together with the testimony of other witnesses, there is proof that within the correct rules of evidence the most favorable date is the true and correct date. We cannot indulge in mere inferences in favor of the claimant in this class of cases. See Matter of Nelson, 63 Misc. Rep. 627–635, 118 N. Y. Supp. 673.
 I am satisfied that the board, room, and services were furnished by the claimant gratuitously up to the 1st day of October, 1913, and the claim is. disallowed for all board, room, and services before that date. I am further satisfied that there is proof of circumstances showing an implied contract to pay what the board, room, and services were reasonably worth from October 1, 1913, to December 26, 1916. From October 1 to December 26, 1916, the date when Wesley Becker went to the hospital the last time, was a period of 168 weeks and 2 days. He was also in the hospital in the summer of the year 1916 6 weeks and 3 days, leaving 161 weeks and 6 days. I am satisfied that the board, room, and services were worth $5 per week, making the indebtedness of Wesley Becker to Esther B. Haverly the sum of $809.20 on account thereof. On December 26, 1916, the claimant loaned deceased $15, and paid out $1.75 for his benefit.
A decree will provide accordingly.
In re NEWELL.
In re WATSON'S WILL.
(Surrogate's Court, Orleans County. August, 1920.) 1. Executors and administrators Cw513 (10)-Decree on accounting that leg.
acies had lapsed held not conclusive.
A decree settling an executor's account, providing that legacies had lapsed, is not conclusive against the legatees, if that question was not
then properly before the court because of lack of funds for payment. 2. Executors and administrators Ow471, 513 (9) --Citation held not to give
jurisdiction over corporations.
A citation in proceedings for settling an executor's account, directed to two societies by the names given in the will, is not sufficient citation to two corporations bearing different names, but claiming to be the societies intended by testator, so that such corporations were not bound by the decree of accounting, under Code Civ. Proc. $ 2742, making a settlemen
conclusive against parties duly cited or appearing, and no others. 3. Wills Cw489 (6)--Parol evidence admissible to identify corporate benefi
Where the will contained legacies to two religious societies, and ther were no corporations or unincorporated associations bearing the name stated in the will, parol evidence was competent to ascertain who wer intended by testator. For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Index
4. Wills en 489 (6)—Evidence held to identify corporations as, beneficiaries
Where the will contained legacies to the church extension societies of two denominations, but there were no corporations of the names stated in the will, evidence of declarations by testator and of the purposes of the corporations claiming the legacies held to show that they were the legatees intended by testator.
Application for judicial settlement of the accounts of George A. Newell, as trustee under the last will of William H. Watson, deceased. Decree entered, directing payment of two contested legacies.
Henry W. Chadeayne, of Newburgh, as administrator of Florence R. Watson, and for residuary legatees.
Irving L'Hommedieu, of Medina, for surviving executor and trustee.
Ramsdale & Church, of Albion, for Congregational Church Bldg. Soc.
G. W. Fitch, of Albion, for Board of Church Extension of Methodist Episcopal Church.
M. Linn Bruce, of New York City (Raymond Ballantine, of New York City, of counsel), for Board of Church Erection Fund of General Assembly of Presbyterian Church in the United States.
Parsons, Closson & McIlvaine, of New York City, for Board of Home Missions of Presbyterian Church in the United States.
FLUHRER, S. The testator died January 24, 1888, leaving a will, dated September 6, 1885, containing, among other provisions, the following:
"Seventh. I hereby direct and declare that the provisions made for my wife and daughters Henrietta and Marietta in the above fourth, fifth and sixth clauses of my will are and each of said provisions is for the natural life of the beneficiary named and at the decease of either of said my wife and daughters Henrietta and Marietta, all that portion of the fund set aside and invested by my said executors as therein directed unexpended at the date of such decease except such sum as shall be necessary to pay the necessary funeral expenses of such deceased (which I hereby direct to be paid) shall be and remain in their hands to be disposed of by them as hereinafter directed."
"Eighteenth. I give and bequeath to the Church Extension Society of the Methodist Episcopal Church the sum of two thousand five hundred dollars.
“Nineteenth. I give and bequeath to the Church Extension Society of the Presbyterian Church the sum of two thousand dollars.
"Twentieth. I give and bequeath to the Church Extension Society of the Congregational Church the sum of two thousand five hundred dollars."
After the death of the widow and the daughter Henrietta, both of whom survived the testator, a petition was filed in this court by the surviving executor for a judicial settlement. Upon the return of the citation in such proceeding, an accounting was had and a decree was made by the surrogate, directing that, after the payment of the commissions of the executors and trustees and the amounts allowed for counsel, the sum of $15,000 be set aside by the trustee for the surviving daughter, Marietta Watson, for her natural life, as provided in the seventh clause above mentioned, and that the balance remaining in the hands of the trustee, $1,344.21, be paid to the Board of Em For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes
(184 N.Y.S.) Church Extension of the Methodist Episcopal Church to apply on the legacy bequeathed by the eighteenth clause of the will, there being no further sum available for distribution at the time of the making of such decree. The decree contained the further provision:
"And it is further ordered, adjudged, and decreed that the legacy given by the nineteenth clause or subdivision of the last will and testament of William H. Watson, deceased, to the Church Extension Society of the Presbyterian Church, and the legacy given in the twentieth clause or subdivision of said will to the Church Extension Society of the Congregational Church, shall each and both lapse and fail for want of a beneficiary to take the same, as no society or corporation has been found by the executors, after what seems to be a diligent effort, which will correspond with those named in such clauses,"
On March 10, 1917, the daughter, Marietta Watson, died. A proceeding for a compulsory accounting was instituted by the residuary legatees. The surviving executor and trustee has filed his account, and now asks that his accounts be judicially settled. According to the account filed by him the sum of $15,000, previously set aside for the benefit of Marietta Watson pursuant to the decree of 1901, is now available for distribution, with some accumulations since her death. Testimony has been introduced in the present proceeding on behalf of the “Board of Church Erection Fund of the General Assembly of the Presbyterian Church in the United States of America,” claiming that that corporation was the legatee intended by the testator in the nineteenth clause of his will, in which he undertook to "give and bequeath to the Church Extension Society of the Presbyterian Church the sum of two thousand dollars." Testimony has also been offered in this proceeding by the "Congregational Church Building Society," claiming that that corporation is the legatee entitled to the bequest made by the testator in the twentieth clause of the will, "to the Church Extension Society of the Congregational Church the sum of two thousand five hundred dollars." It is claimed on behalf of the residuary legatees that the provision contained in the decree of the surrogate, made in 1901, adjudging that the respective legacies to the Church Extension Societies of the Presbyterian Church and the Congregational Church lapsed and failed for want of beneficiaries to take the same and is “res judicata,” and that such provision is now to be deemed final, conclusive, and a bar to the claims made by the religious corporations appearing herein.
The citation (upon which the decree of 1901 was based) purported to cite the various parties therein named “to appear before our said surrogate at a Surrogate's Court to be held
on the 15th day of October, 1900,
to attend the settlement of said accounts" (referring to the accounts of the executor). Sections 2742 and 2743 of the Code of Civil Procedure, as they existed at the time when such citation was issued and at the time when such decree was made, detail the effect to be given to a judicial settlement of the accounts of an executor, and make provision as to the matters to be included in a decree. As a Surrogate's Court is a court of limited jurisdiction (Matter of Hawley, 104 N. Y, 250, 262, 10 N. E. 352), I am extremely doubtful as to whether the provision of the decree