
    In the Matter of the Judicial Settlement of the Account of William H. B. Totten and Others, as Executors, etc., of Sarah B. Totten, Deceased, Respondents. Wallace E. Brown, Appellant.
    First Department,
    March 11, 1910.
    Husband and wife—medical services rendered to wife — assumption of liability by wife — executors and administrators — interest on claim against estate.
    The primary liability for medical treatment rendered to a wife rests upon her hus • band, and she is not personally liable unless she specifically assume the liability. But where a wife on entering a sanatorium paid board from her separate estáte, and subsequently, on receiving a bill for medical services, expressed a willingness to pay a fair sum, and the physician received from her a payment on account, her personal liability is established.
    ■ A claimant against an estate is not entitled to interest where the claim was unliquidated and was excessive in amount.
    Appeal by Wallace E. Brown from part of a decree of the Surrogate’s Court of the county of blew York, entered in said Surrogate’s Court on the 6th day of April, 1909.
    
      Dwncam, Edwards, for the appellant.
    
      Thomas F. Keogh, for the respondents.
   Scott, J,:

This .is an appeal from so much of a decree of the Surrogate’s Court .as rejects a claim against the estate of the testatrix and charges the costs of resisting the claim upon the claimant.

This is a claim for board at a sanatorium and for medical services. The claimant, Wallace E. Brown, was a physician, specializing in cases of cancer and maintaining a sanatorium in Massachusetts. Decedent was a lady with a separate estate of about $20,000. and an annual income of about $12,000. Shé was afflicted with what Was believed to be cancer in the'- breast, and after treatrnent by her family physician decided to go to claimant’s sanatorium for treatment. She went twice. On the first occasion it is conceded that she paid her own board.

The present claim is in part for board on her second visit and in part for professional services. 'The amount is not seriously questioned. The only question is whether she. contracted the indebtedness or her husband did. He. is president of a savings bank with a salary of $5,000 per annum, and as against him the Statute of Limitations has run. . There is no doubt of the rule that the primary liability for medical treatment furnished to a wife rests upon her husband, and that the wife is not personally liable therefor in the absence of a special agreement by her to 'make herself responsible. Such an agreement, however, need not be shown by direct evidence, ; but may be found upon evidence of surrounding. circumstances, including acts after the service, indicating an acknowledgment of liability for the service. In. the present case decedent’s husband accompanied her to claimant’s sanatorium and made arrangements for the price to be paid for board. The-husband says that he made these arrangements “acting for” his wife. We do not attach as much importance to this as appellant does, but it has some significance in view o£ the fact that the wife herself actually paid the board thus arranged for. The most significant evidence, however, is as to the wife’s subsequent recognition of her liability. On September 12, 1903, claimant sent decedent a bill in her name for his services. To this she replied in a letter written by her husband, but in her name and by her authority, demurring at the amount of the bill but expressing a willingness to pay a fair compensation. To this claimant' replied expressing a willingness to satisfy her as to amount, but requesting a payment of $100 “ on account, thus protecting [his] rights.” Thereupon she did send him her check for $100. All this seems to us to indicate a recognition by the decedent of the fact that she was personally indebted to claimant and sufficiently establishes tiie claim. The claimant asks for interest. The claim was unliquidated and as now appears was for much too large a sum. We do not think that interest should be allowed. The decree, in so far as appealed from must be reversed, and the proceeding remitted to the Surrogate’s Court for the entry of a decree in accordance with this opinion.

Clarke, McLaughlin, Miller and Dowling, JL, concurred.

Decree reversed and proceedings remitted to Surrogate’s Court as stated in opinion.  