
    Matter of the Judicial Settlement of the Estate of John Funk, Deceased.
    
      (Surrogate’s Court, Kings County,
    
    
      January, 1906.)
    Contracts—Interpretation—Mode of compensation—By will—Refusal TO MAKE STIPULATED COMPENSATION.
    Executors and administrators—Debts and liabilities of estate—Enforcement of claims—Claims by persons in confidential relations.
    Limitation of actions—Accrual of cause of action—Breach of agreement TO COMPENSATE BY WILL.
    Where a stranger, who had previously to her marriage lived with deceased and his wife, is induced to break up her own home and to go with her family and live with him after the death of his wife upon a general understanding as to the household expenses and upon hisi explicit promise that he would make her the sole beneficiary under his will; and, in consequence of friction between the parties caused by certain habits of deceased which were distasteful to her and her family and his ill temper, he terminated the contract and left a last, will which completely ignored her, she is entitled to recover the reasonable value of services rendered to him.
    The Statute of Limitations did not begin to run against her claim until the death of the deceased, although she left his house when he. terminated the contract.
    A contention that she could not recover upon the principle that services between parent and child are presumed to be rendered gratuitously, is untenable; as such a relationship did not exist between the-parties, and, irrespective thereof, the deceased had specifically promised to pay the claimant by making a testamentary provision-for her.
    Hearing of claim against estate on proceeding for judicial' settlement of executor’s account.
    Walter L. Durack, for claimant; Chase, Cahoone & Regan,, for executor.
   Church, S.

This is a hearing upon a claim made against the decedent’s estate. The claimant herein had, previous to her marriage, resided with the deceased and his wife. Although no relation of the deceased, their relations were very friendly and, at times, she was spoken of by the deceased as his adopted. daughter and, at other times, the claimant called the deceased “ father ” and “ papa.” The claimant married and went to live-in the home provided by her husband. The deceased lost his wife and was alone in the world. He thereupon induced the claimant to break up her home and, with her family, go and live in the home owned by the deceased. This was upon a general understanding as to the household expenses and upon a further) explicit promise that the deceased would make the claimant the sole beneficiary under his will. Such a will was, in fact, drafted and delivered into the claimant’s possession. In the course of time the deceased became afflicted with total blindness and, of necessity, required considerable additional attention from that originally expected, among which was the almost constant reading to him of newspapers and other matter.

As the deceased progressed with his illness he became ill-tempered and resorted to certain habits which were distasteful' to the claimant and her family. In consequence of the friction between the parties by reason of these facts, the deceased practically terminated the contract in question. He subsequently died, leaving a will which completely ignored the claimant.

The general proposition that, where services are rendered under the promise and expectation that they will be paid for by suitable testamentary provision and, upon it appearing that no-such testamentary provision is made, the person rendering the services is- entitled to recover for the same on a quantum meruit' is too well settled to need citation of authority.

The only proposition, therefore, to be considered is whether-the facts in this case bring it within the line of authorities under which the claimant is entitled to recover. The counsel for the erecutor -contends that, ¡as the -agreement was broken at the time that the clamant left the testator’s house, the Statute of Limitations then commenced to run. I am unable to agree with him as to the correctness of that -proposition. It is trae that the relation under which the claimant was rendering the -services was stopped; but, until the deceased -died and left a will, in which no provision was made for the claimant, the claimant could not contend that the deceased had broken his •contract; and, therefore, the Statute of Limitations, in my judgment, did not begin to run until the death of the deceased.

The evidence of disinterested witnesses plainly establishes the fact that the deceased had agreed to recompense the claimant for her care and attention to him 'by way of testamentary provision, -and he having failed to comply with this promise, the ■claimant is entitled to recover -the sum -asked for herein:

It has been suggested by the executor that under the prin•ciple that services between parent and child are presumed to be rendered gratuitously unless the contrary is shown, the claimant cannot recover. There are two ¡answers to this contention. In the first place, it cannot be -said that the claimant ■stood in the relation of an adopted daughter to the deceased. In the second place, the evidence shows that, irrespective of the. relationship of the parties, the -deceased had specifically promised to- pay the claimant by making ¡ai testamentary -provision for her.

The claim is, therefore, allowed -and findings will he signed ^accordingly.

Decreed -accordingly.  