
    Hannah Bradley, App’lt, v. George H. Bradley, Ex’r, Resp’t.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed October 21, 1892.)
    
    1. Decedents’ estates—Claim fob boabd.
    After testator had lived some years with his son, plaintiff’s husband, he-went to live with his daughters, but returned, as he stated, because they wanted him to pay more board than he could afford, and remained with plaintiff until his death. While there was never any express agreement as to payment for board, the referee found that testator expected to pay and plaintiff to receive payment. Testator left his property to his daughters, to the exclusion of his son. Held, that the referee properly allowed for board from the time of his return.
    2. Same.
    Prior to his leaving to go to his daughters, testator allowed his son to-buy in a farm on foreclosure of a mortgage in which he held an interest. This farm was afterwards sold, and the proceeds given to plaintiff, who purchased in the remaining interests of certain property in which she was-interested. The son had remained with testator until after he was thirty-two years of age without compensation. Held, that the concession by testator should be regarded as compensation for services already rendered, and not as payment in advance for testator’s care and maintenance in the future.
    3. Same—Amendment of claim.
    Where the claim has been amended without opposition and no appeal was taken from the order, but the parties proceeded to trial on the claim as amended, it is too late to object to the amendment on appeal from the referee’s decision
    Appeal by the plaintiff from an order of Brie special term, entered in Orleans county, April 4, 1892, setting aside the report, of a referee, order of confirmation and judgment entered thereon, and granting a new trial, in the case of a reference under the statute.
    
      J. H. White, for app’lt; L. M. Sherwood, for resp’t.
   Dwight, P. J.

The claim referred was for eight years board,, lodging, etc., of the defendant’s testator, Gyrus Glark, deceased, from April, 1882, until his death in June, 1890; also for the-keeping of horses of the deceased during a portion of that time.

The plaintiff was the wife of the testator’s son, Milton Glark, who married her in the year 1870, when he was thirty-three years of age. He had up to that time always lived at home, rendering-service to his father on his farm, without other compensation than-his support Immediately upon his marriage he took his wife home to his father’s house on a farm belonging to the latter, known as the Bates farm, in the town of Ridgway, where they lived as members of the father’s family, rendering service, and receiving support, as such, without expectation of giving or receiving compensation for either, until the farm was sold in the spring of 1882. At that time Milton hired a house in the same town, to which he removed with his wife, and went to housekeeping; his father went with him, and remained a member of his family, at that place, until the spring of 1883.

In the spring of 1883, the plaintiff bought the interest of the other heirs of her father in a farm which they had inherited in common with her, paying therefor, or thereon, the sum of $3,299, which she had received from her husband under the following circumstances: In the spring of 1869 Cyrus Clark, the deceased, sold a farm in the town of Yates, taking back a purchase money mortgage of $14,000, payable in fourteen annual instalments of $1,000 each. He assigned his interest in this mortgage to the extent of $12,000. Default was made in the payment of some of the-later instalments of the $12,000, and an action of foreclosure was instituted, in 1879, by the owner of those instalments, to which Cyrus Clark, as the owner of the remaining $2,000, was made a party. When the sale took place Cyrus Clark was sick, and he sent Milton to bid in the property, directing him to do so in his own name. This Milton did and took a referee’s deed of the farm, paying the amount of his bid by giving a mortgage on the same property, and his father afterwards gave him a quitclaim deed of the farm for a nominal consideration. Milton sold the farm in 1881, subject to the mortgage he had given, and realized therefrom the sum of $3,299, which was the same money he gave to his wife and which she paid on the farm known as the Whitaker farm, purchased by her. She took and retained the title to that farm in her own name, went on to it in the spring of 1883 with her husband, and managed it as her separate property, receiving its proceeds and defraying the expenses of the family therefrom. Cyrus Clark also accompanied his son and daughter-in-law in their removal to the Whitaker farm, and continued with them as a member of their family until May, 1884, when he went to Chicago to live with a daughter, Mrs. Rolfe, at that place.

It was at about this time that the plaintiff gave to the deceased her promissory note for $130, payable in one year, for borrowed money, which remained unpaid at the time of his death, and which the referee allows, with interest, as an offset to the plaintiff’s claim.

In respect to the period of two years and upwards next following the sale of the Bates farm, embracing the year when the family lived on the place hired by Milton, and the first year, and more, on the Whitaker farm, the referee finds that no agreement or understanding existed between the father and either Milton or his wife that the former should pay for his board, and that portion of the plaintiff’s claim was not allowed by the referee.

The old gentleman seems not to have been encouraged to remain with his daughter at Chicago; he afterwards reported that she declined to keep him unless he would pay her a dollar a day for his hoard, and he remained with her only until the last of September of the same year. He had, some years later, even less success-in the attempt to find a home with another daughter, Mrs. Sherwood, who lived in Niagara county. He remained with her only a few days, and reported that she proposed to charge him five dollars a week and was unwilling to keep him at all.

It was on the 30th day of September, 1884, that the deceased returned from Chicago to his former home and again took up his residence with his son and daughter-in-law on the Whitaker farm ; and there he remained as a member of their family, with few and brief intermissions, until his death, in June, 1890. It is for his-board, lodging, washing and care, during this period of two hundred and ninety-three weeks, at the price of three dollars per week, that the principal item of the plaintiff’s claim was allowed by the referee. That allowance is based upon findings which embrace the facts above stated, and further facts, among others,, as follows : “ That there never was any express agreement between him [the deceased] and the plaintiff in regard to said board, washing and care. * * * That upon his return from Chicago-to the plaintiff’s house in September, 1884, and resuming his residence in her family, he expected to pay plaintiff for his board and care a reasonable sum, provided she saw fit to charge him for the-same, but expected it to be less than that charged by his daughters, and from the time he so returned to live with her, the plaintiff expected to charge him such reasonable sum for his said board and care, and to be compensated therefor by will or otherwise and at some time during the period he so lived with her she notified him of such intention, and of her expectation to receive compensation for the same, and he continued to live with her and receive such board, services and care after having been so notified. * * * That in consequence of his age, his infirmities and his-untidy habits, it was unpleasant to care for him, and these conditions caused extra labor and attention. * * * That Cyrus Clark left a will by which he gave no part of his property to-Milton, or to his wife, the plaintiff, but gave the whole of it to his daughters, Mrs. Eolfe and Mrs. Sherwood, and to two grandchildren, to be equally divided .between them.”

A very careful review of the record before us on this appeal inclines us to the opinion that the disposition made of the case by the referee wa§ just and permissible under the law applicable to-this class of cases. There was evidence tending to show a mutual understanding between the plaintiff and the deceased, that at-some time and in some way, by testamentary provision or otherwise, she, or her husband, should be reasonably compensated for the expense of time and money to which they were subjecting-themselves in his behalf during the period of nearly six years of his old age and final helplessness. It was during that period that he had successively made the experiment of living with his two-daughters and found it a failure because they exacted from him more compensation than he could afford to pay. He could not reasonably expect that his daughter-in-law would do for him from motives of filial duty more than his own daughters were willing; to do. But the suggestion is, and that we think is the real ground of opposition to the plaintiff's claim, that she had already been paid in advance for services rendered and expenses incurred in and about the care and maintenance of the deceased. The reference is, of course, to the concession, on the father’s part, by means of which Milton was enabled to realize, out of property which belonged to his father, and, so, to present to his wife the sum of money which she paid for the interest in the Whitaker farm purchased by her.

But we do not regard the suggestion as controlling upon the-main question of fact in this case. Granting that the arrangement was a concession by the old man to Milton, and of the value-of the sum realized by the latter in the transaction, is there any presumption, under the circumstances of this case, that this was-to be regarded as payment in advance for the care and maintenance of the father during the remainder of his life ? Or is it not more reasonable to suppose that it was in recognition and, in a manner, as compensation for services already rendered by Milton and his wife to him. .Milton became of age in 1858, and for twenty-two years after that time and before his marriage he-served his father without compensation beyond his board and clothes and scanty spending money. He was married in 1870 and for twelve years after that time not only he but his wife, also, rendered similar services for similar compensation only.

It is not contended that either Milton or his wife could have-recovered, at law, compensation for these thirty-four years of service, but it may well be suggested that when, at the end of that time, the father puts his son in the way of realizing a little over $3,000 and permits him to .put it into property for the benefit of his wife, it is quite as likely to have been intended in recognition: of the past as in provision for the future. In this view of the transaction there was nothing in it which deprives the plaintiff of the benefit of the ordinary presumption of a contract on the part of the deceased to pay for the services rendered and expenses-incurred by her in his behalf.

The allowance to the plaintiff of her claim for the keeping of horses of the deceased on her farm rests upon the same principles as that for the board and care of the deceased; but a question of practice is involved in the consideration of one of the items of this claim which requires to be noticed. The claim as .originally presented to the executor, while it specified the raising of three colts, did not include a charge for the keeping of the brood mare from which they were raised. After the claim as presented had been referred, the plaintiff applied to the court at special term, on notice to the executor, for leave to amend her claim in the respect mentioned. The order was granted without opposition, and notice of its entry was duly served on the attorneys of the defendant.

Ho appeal was ever taken from the order nor was any motion made to set it aside, but the parties went to trial on the claim, as amended thereby.

It seems to be now too late to object that the amendment was irregular or without jurisdiction.

We think the report of the referee is well sustained, and that the plaintiff was entitled to its confirmation and to judgment thereon.

The order setting aside the report, order of confirmation and judgment, and granting a new trial, should be reversed.

Order appealed from reversed, with costs.

Macomber and Lewis, JJ., concur.  