
    Madison P. Wamsley, Respondent, v. Margaret A. Wamsley and Anna M. Van Steenburgh, as Executors, etc., of Perry Wamsley, Deceased, Appellants.
    
      Agreement by a son to support Ms parents in consideration of the personal property on Ms father’s farm — Ms rights thereunder.
    
    Where a son, who- has entered into an arrangement with his father hy which he is to have the use and avails of the father’s farm and the personal property thereon, and by which he agrees to care for and support his parents during the lifetime of the father and pay the latter’s then existing debts, in consideration of which payment the personal property on the farm is to be his, occupies the farm, pays the greater part- of his father’s debts, disposes of some of the personal property, and supports his parents pursuant to the agreement until the death of his father, when, his right to retain the personal property being disputed by the father’s executors, he surrenders the greater part thereof without prejudice to his claim against the estate, the measure of his recovery is the value of the personal property surrendered to the executors, less the ’ amount, of the unpaid debts.
    Appeal by the defendants, Mary A. Wamsley and Anna M. Yan Steenburgh,. as executors, etc., of Perry Wamsley, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Delaware on the 31st day of August, 1899, for the sum of $469.37, upon the report of a referee upon a claim against the estate of Perry Wamsley, deceased, presented by the plaintiff to the defendants, disputed by them and referred in pursuance of the statute.
    
      Williams & Conlon and W. H. Johnson, for the appellants.
    
      J. M. Maybee, for the respondent.
   Merwin, J.:

It is found by the referee that on or about June 16, 1894, an arrangement was made between the plaintiff and his father, Perry Wamsley, by which the plaintiff should have the use of the farm of his father and the personal property thereon, consisting of horses, cows, farming and dairying utensils, and the avails thereof, and should care for and support his parents during the lifetime of the father; and that the plaintiff wras to pay the debts of his father then existing, and in consideration of such payment, if made by plaintiff, the personal property on the farm should be his.

Under this arrangement the plaintiff occupied and ran the farm and had the use and avails of the farm and personal property until the death of his father in October, 1897, and provided for the support and care of his parents according to his agreement. He also paid the greater portion of the debts of the father and disposed of some of the personal property.

Upon the death of Mr. Wamsley the defendants- disputed the right of the plaintiff to have or keep the personal property that remained and commenced legal proceedings to recover possession of a portion thereof. Thereupon the plaintiff surrendered the property, or the greater portion thereof, without prejudice to any claim he might make against the estate. Subsequently he presented the claim in suit for the recovery of the amount of the debts of his father which he had paid, and also for improvements upon the farm and taxes paid and a claim of his own for work on the farm from September, 1893, to July, 1894. The referee disallowed the claims for improvements and taxes, but allowed the claim for debts paid and for work of plaintiff on the farm. He, in substance, held that the plaintiff could recover for what he had paid out on debts under' the arrangement less the value of such ..of the personal property as he did not return.

I doubt the correctness of the rule of recovery adopted by thé referee. -Assuming that the plaintiff up to the time of the death of ' his father performed his part of the contract and was ready upon demand to pay any other debts covered by the arrangement, and assuming that the defendants interfered in violation, of the contract and obtained possession of the personal property that remained, the measure of the recovery by plaintiff was, I think, under the circumstances shown here, the value.of the property taken by the defendants less. the. amount of the unpaid debts. The amount of the debts that plaintiff under the arrangement was to pay was not fixed; he was to pay all that existed at "a certain date. The consideration for such payment that plaintiff was to receive was not the amount in money, but certain property. This came to plaintiff’s possession and some he disposed of. He is, therefore, not in a position to return the property that he received. He has not, in fact, returned all that remained at the death of the father. If the defendants interfered, so that the- plaintiff did not get his full Compensation, he would be made whole -by receiving the value of such as the defendants took less any unpaid debts,"

Upon the theory adopted by the referee the proof does riot, I think, sustain the allowance of all of the items which are in fact allowed in the recovery. The item of forty-one dollars and five cents, paid to James Cotter, was not a debt in existence at the time of the arrangement, nor was it a debt against the father. The item of fifty-nine dollars and sixty cents, for claim of Wagner & Fisher, is not shown to be a debt against the father. Hor was it within the terms of the agreement. It was for legal services in proceedings about laying out a road instituted after the arrangement under which plaintiff ran the farm. The plaintiff has paid no part of the claim. He testifies that a part was charged to him, but how much he does, not state. The father was not a party to the proceeding. The item of one hundred and fifty-twó dollars allowed for services of plaintiff on the farm from September 1, 1893, to June 16, 1894, was not shown to be a legal claim against the father within the rule laid down in Otis v. Hall (117 N. Y. 131).

The defendants are, I think, entitled to a new trial not only on the ground that the evidence does not sustain' the judgment, but also on the ground that the referee adopted an erroneous rule as to the measure of recovery.

All concurred.

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