
    Lizzie Johnson, Respondent, v. Edgar D. Sherman and Others, as Executors, etc., of Isaac C. Sherman, Deceased, Appellants.
    
      Claim for services rendered to a decedent — evidence of the value of lands which the decedent verbally promised to give therefor is incompetent upon the question of the value of the services.
    
    Upon a reference of a claim for services rendered by the plaintiff to the defendants’ testator, it is improper to allow the plaintiff, for the purpose of establishing the value of such services, to show the value of property which the decedent verbally agreed to give the plaintiff in consideration of the rendition of-the services.
    Appeal by the defendants, Edgar D. Sherman and others, as executors, etc., of Isaac 0. Sherman, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the cleric of the county of Madison on the 5th day of October, 1897^ upon the report of a referee.
    This was a statutory reference of a disputed claim against the estate of a decedent. .
    
      Joseph Heal, for the appellants.
    
      Joseph J. $enn, for the respondent.
   Merwin, J.:

The referee finds that from on or about January 1, 1893, to June 1, 1896, the plaintiff, at the request of the defendants’ testator, performed' services for him which were of the value and reasonably worth the sum of $1,072, for which amount judgment was ordered in -her. favor, with costs.. The defendants claim, among other things, that, assuming the plaintiff has shown a basis for recovery, the evidence does not justify a recovery for the amount fixed by the referee.

From the 1st of January, 1893, to the time of the death of Mr. Sherman,' on June 1, 1896, the plaintiff, with her husband, occupied a portion of the dwelling house of the decedent, under a lease between the husband and the decedent, at the rent of eight. dollars a month. The rent was paid the first day of every month. During the same period the decedent and his son occupied, in the same house, one of the lower rooms, and had sleeping rooms above, and had equal privilege of the hall. They took their meals at an adjoining house, except during a few weeks at a hotel'. The decedent was an old man and partially blind. The son was nineteen years old when the plaintiff went there.

The services, as the referee finds, consisted in the care of the rooms of the decedent occupied by him and his son, doing their washing, ironing and mending, reading to the decedent, assisting him and caring for and waiting' upon him.

For some considerable time after the plaintiff went there the services of the plaintiff were quite slight and voluntary upon her part. The first talk with the decedent about compensation, as testified .to by the plaintiff’s husband, was in July or August, 1893, when the decedent told the husband that they should have ample pay for whatever they did for them. The husband also testifies that in the following December or January they commenced to take-care of the rooms; that it was very distasteful to the plaintiff, and that, the decedent in substance told them that if they would stay there during his life and the plaintiff do the work, he would give her the house and lot. . It seems to have been the duty of the son to take care of the rooms. He did do it mainly the first year and also to some extent afterwards. The.item of washing is regarded by the, plaintiff as important. It was, however, shown that this was done to a considerable extent by other parties. The plaintiff was not in good health for some time prior to October, 1894, and was ill from about October 15, 1894, to April 1,1895, and during that time none of the disagreeable part of the work was done by or in behalf of the plaintiff. The family physician of the decedent testified that up to a month of the time of his death the decedent was in good-health. In his last illness he was cared for mainly by other parties.

It is quite clear that the most onerous if not the principal services performed by the plaintiff were after April 1,, 1895.

The plaintiff was allowed to show that the value of the property which the decedent verbally agreed that the plaintiff should have was $4,000. The referee denied a motion made by the defendant to strike out this evidence as not being the true measure of damages. The other evidence on the part of the plaintiff as to the value-of plaintiff’s services consists mainly of the answers of several witnesses to hypothetical questions, and the witnesses assume either that the plaintiff was employed as a nurse or that her whole time was given up to the care of the decedent. N either- of these assumptions are sustained by the evidence.

The referee, in his report, finds as matter of law that the value of the house and lot referred to is no evidence of the value of the services rendered by the plaintiff. The amount fixed by the referee 'would be at the rate upon the average of about six dollars a week-for the whole period from January 1, 1893, to June 1, 1896. According to the evidence on the part of the defendants the amount, fixed by the referee is largely in excess of the reasonable value.

A careful consideration of the evidence leads to the conclusión, that the evidence is not sufficient to sustain the finding of the referee of the value of the services performed by the plaintiff. Neither is-, it clear that the evidence as to the value of the. property did not affect the result. It was incompetent for that purpose.1 (Erben v. Lorillard, 19 N. Y. 299 ; Harsha v. Reid, 45 id. 415, 420.)

A new trial should be granted.

All concurred.

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