
    (88 Hun, 87.)
    In re CALLISTER’S ESTATE.
    (Supreme Court, General Term, Fifth Department.
    June 21, 1895.)
    1. Husband and Wife—Separate Property—Antenuptial Contract.
    A. contract between a man and a woman, who afterwards intermarry, for services to be rendered by the woman, is not “property,” within Laws 1848. c. 200, § 1, which provides that the property of any woman who may hereafter marry, which she shall own at the time of her marriage, shall continue her separate property, as if she were single, but is merged in the subsequent marriage contract.
    2. Witness—Transaction with Decedent.
    A note executed by decedent, and offered in evidence by the next of kin on the hearing of a claim against decedent’s estate for the purpose of showing that all prior obligations to claimant had been settled, and that the note represented the sum total of what was due the claimant, is not tlie testimony of decedent, within Code Civ. Proc. § 829, so as to permit claimant to testify as to the consideration of the note.
    8. Claims against Decedents—Presumption of Payment.
    The fact that the administratrix gave to a debtor of intestate a check for a sum of money does not create a presumption that the debt to intestate had been paid.
    Appeal from surrogate’s court, Ontario county.
    Judicial settlement of the accounts of Margaret Callister and Henry Likly, as administrators of John Callister, deceased. From the decree, certain claimants appeal.
    Reversed.
    Margaret Callister is the widow of the deceased, and the daughter of Robert Walker, deceased. She is the administratrix of the estate of Walker, as well as an administratrix of the estate of Callister. She married Mr. Callister in May, 1857, and he died -in April, 1888. Upon the accounting before the surrogate of the estate of Callister, she presented, as administratrix of Walker, a claim against the Callister estate for $2,000 for money loaned by Walker to Callister, and for $30 interest received by Callister upon a mortgage belonging to Walker. She also presented an individual claim, to the effect that about one year preceding her marriage with Callister (who was a practicing lawyer) she entered into a contract with him to act as copyist and clerk in his law office, for which he agreed to pay her at the rate of $500 per year, the employment to continue as long as he practiced law, payment not to be made until he retired from practice; that from the time of her contract until the time of his death she served continuously for him as such clerk and copyist, and had only received as compensation therefor the sum of five dollars, which was paid by deceased after the marriage, thereby recognizing the contract; and that Callister practiced law until the time of his death. The next of kin of John Callister disputed these claims, and the matter was referred by the surrogate to a referee, who took proof, and found in favor of Mrs. Callister, the claimant, upon a note of $1,200 and interest which she held against her husband; and found against her on her claim for services, upon the ground that her contract for service was merged in her marriage; and rejected the claim in favor of the Walker estate, upon the ground that Mrs. Callister, as the administratrix of Walker, had given a check for $120 to some bankers, payable to the order of John Callister, that had been indorsed by him and bore the mark of a canceling hammer. No explanation was given as to the check, its consideration, or the purpose for which it was given. The next of kin required the claimant to produce before the referee the $1,200 note above referred to, and she did produce it, and the next of kin presented it in evidence as the note of Callister, without objection. To rebut the presumption created by that note, as against the individual claim of Mrs. Callister, she was offered as a witness in her own behalf to explain the consideration of the note, and the circumstances under which it was given, which involved a personal transaction with her deceased husband. The next of kin objected, because it was such a transaction, and the evidence was prohibited by section S29, Code Civ. Proc. The objection was overruled, and the next of kin excepted, and the evidence was received. The referee’s report, and the evidence accompanying it, was submitted to the surrogate, and that officer sustained the finding of the referee as to the claim of the estate of Walker, upon the same grounds as assumed by the referee, but rejected his conclusions as to the claim for clerical services, and decreed that the claimant should recover it, amounting with interest to about $22,000, and should also recover the amount of the $1,200 promissory note and interest. The referee and surrogate both found the contract between Mrs. Callister and her husband as claimed by her and above set forth, and also that the $2,000 loan had been made by Walker to Callister, upon which Callister had paid $1,000, and the $30 of interest on the mortgage had been received by him, and that the real consideration of the $1,200 note was for money which had been given the claimant by her husband, and which had been accumulated for the purpose of buying oil paintings. The next of kin appealed from the decree allowing the claim of Mrs. Callister; the administratrix of Walker appeals from that portion of the decree rejecting the claim of the Walker estate; and the two appeals were heard together.
    Argued before DWIGHT, P. J., and LEWIS, BRADLEY, and WARD, JJ.
    James C. Smith, for appellant Margaret Callister.
    W. A. Sutherland, for appellants next of kin of John Callister, deceased.
   WARD, J.

At common law the husband was absolutely entitled to the services of his wife, and to all that should be acquired by such services. During the period covered by the contract of Mrs. Callister and her service for her husband, the enabling acts for the benefit of married women had not deprived the husband of the common-law right to his wife’s services. Blaechinska v. Howard Mission, 130 N. Y. 497, 29 N. E. 755; Porter v. Dunn, 131 N. Y. 314, 30 N. E. 122; Hendricks v. Isaacs, 117 N. Y. 411, 22 N. E. 1029; Bertles v. Nunan, 92 N. Y. 160; Whitaker v. Whitaker, 52 N. Y. 371. In the case first cited, at page 502, 130 N. Y., and page 755, 29 N. E., where the question arose whether a married woman working for her husband on a weekly salary as seamstress was entitled to the salary, the court say: “The enabling statutes do not relieve a wife of the duty of rendering services to her husband. While they give her the benéfit of what she earns, under her own contracts, by labor performed for anyone except her husband, her common-law duty to him remains; and if he promises to pay her for working for him, it is a promise to pay for that which legally belongs to him. The fact that he cannot require her to perform services for him outside of the household does not affect the question, for he could not require it at common law. Such services as she does render him, whether within or without the strict line of her duty, belong to him. If he pays her for them, it is a gift. If he promises to pay her a. certain sum for them, it is a promise to make her a gift of that sum. She cannot enforce such a promise by a suit against him.” In the last case cited, which- was an action upon a note given by the hus-. band to the wife for services rendered by her outside of the household and upon a farm, Judge Peckham, at page 371, says: “If a wife can be said to be entitled to higher consideration or compensation because she labors in the field instead of in her household, which I do not perceive and cannot admit, the law makes no such distinction. It never has recognized the right to compensation from her husband on account of the peculiar character of her services.”

. The learned counsel for the claimant, Mrs. Callister, predicates his claim to recover for her services tó her husband upon chapter 200, §. 1, of the Laws of 1848, which provides that, “The real and personal property of any female who may hereafter - marry, and which she shall own at the time of her marriage, and the rents, issues and profits thereof shall not be subject to the disposal of her husband nor be liable for his debts, and shall continue her sole and separate property, as if she were a single female.” And his contention is that the plaintiff’s contract with Mr. Callister, having been entered into before her marriage, was a chose in action, and therefore “property,” and, being property, was saved to her by the statute, and was not merged in the marriage contract. It must be conceded that this was not an ordinary business contract concerning property. It was an extraordinary one, and one which seemed to contemplate an uninterrupted business relation during the professional life of Mr. Callister. It was in the power of these parties at any time to do away with or modify this contract, or form any relation which at law -would destroy the contract. A year after this contract was made, an event occurred, which we assume was not in contemplation of the parties when the contract was made, that so changed the relation of the parties to each other that the servant became the wife and the master the husband. This changed relation was inconsistent with the contract of exclusive service in clerical work, because at law the service of the wife belonged to the husband and took on a domestic character. The wife, after marriage, was not obliged to work for the husband outside of her legitimate domestic duties. He could not compel her to work on the farm or continue the clerical work in his office, nor could she demand of him a salary as clerk. She had a higher demand upon him. He was^aow to support her, and to supply her with all things appropriate to his meáns and his station in life as his wife, and not as his servant. This changed relation, then, of necessity abrogated the contract If the wife chose to continue the clerical work after the marriage, she must be content with the new advantages which the marriage brought to her as _ her compensation for that work. As we have seen by the cases cited, if she choose to perform work for her husband outside of her domestic duties, she cannot recover for her services of her husband# although he has contracted to pay them. We are of the opinion that it was not within the contemplation of the statute of 184S to preserve a contract of this character from the effect of the marriage. The contract was merged in the marriage, and the claimant can only recover for that portion of the clerical work, at the stipulated rate, performed before the marriage.

It was error to admit the evidence of the elaimant as to the personal transaction between herself and her husband which resulted in his executing to her the note of $1,200. The note was produced upon the reference, upon the request of the next of kin, by the claimant, and it was received in evidence without objection. When thus proved, the presumption arose that all prior obligations of the deceased to the claimant had been adjusted and settled, and the note represented the sum total of what was due the claimant. As such it was most important evidence. To break the force of this presumption, the claimant was sworn, over the objection that her evidence was prohibited by section 829 of the "Code of Civil Procedure, and she testified as to the consideration of this note, which if credited overthrew the presumption. The claimant Could only give this testimony, under séction 829, when the “testimony of the deceased had been given in evidence concerning the same transaction.” This had not occurred, unless, as claimed by the claimant’s counsel, in calling for the production of this note and producing it in evidence the next of kin had given such “testimony in evidence.” This note was in no sense the testimony of the deceased. If the note had been brought into court by a subpoena, and the signature of the deceased proved in the ordinary way,. and been -shown in the possession of the claimant, it would have established the delivery of the note, and been evidence of the Contract between the parties, which raised the presumption referred to; « The claimant could not go into- the personal transactions behind the note, and out of which it arose, any more than in the case of a bond, a mortgage, or any other written. agreement between the parties. The production of this note by the claimant, and the admission of the signature of the deceased, or allowing it to be read in evidence without the proof of signature, was simply a waiver on the part of the claimant of the proof of the signature and of the delivery of the noté to her, which otherwise the next of kin would have been compelled to establish. If this ruling is sustained, then in all cases the evidence created by a writing between the living and the dead may be overthrown by the evidence of the living as to the transaction out of which the writing was Created,- while the lips of the other party to the transaction are closed, thus dereating the wise purpose of section 829. The question is asked in some of the cases, what the Code means by the “testimony and evidence” of the deceased. This provision was probably incorporated in section 829 to meet a condition which appeared in Potts v. Mayer, 86 N. Y. 302. Where the evidence of a deceased person that had been given upon a former trial of the same action was read in evidence, the living party to the transaction was permitted to testify as to the same transaction, which the court sanctioned in that case.

The surrogate having found as a fact the loan of the $2,000 from Walker to Callister, and the receipt by Callister of the interest money upon Walker’s mortgage, and that there had been paid upon this note $1,000, the balance unpaid and interest is a valid charge against the estate of Callister, unless the next of kin are right in their contention that the check of $120 given by Mrs. Callister, as administratrix of Walker, to John Callister created a presumption that destroyed this claim. Had Mrs. Callister given her individual check, it would not be claimed that such check would have had the effect stated. The presumption is only created, if at all, by the fact that she signed it as administratrix of Walker. It is well settled that an administrator cannot bind an estate by executing a note, check, or other negotiable instrument as administrator. If he assumes to do so, it is his individual act, and he is personally responsible. Buckland v. Gallup, 40 Hun, 61; Bingham v. Bank, 41 Hun, 377; Railroad Co. v. Gilbert, 44 Hun, 201; Thompson v. Whitmarsh, 100 N. Y. 35, 2 N. E. 273; Schmittler v. Simon, 101 N. Y. 554, 5 N. E. 452. The rejection by the surrogate of this claim was error. The decree of the surrogate should be reversed, and the proceedings remitted to the surrogate’s court of Ontario county to proceed therewith, costs to all the parties to this appeal to be paid out of the estate of John Callister. All concur.  