
    In the Matter of the Judicial Settlement of the Estate of John Milligan, Deceased. Mary Milligan Jensen, Appellant; Agnes M. Welsing and Frank Milligan, as Administrators, etc., of John Milligan, Deceased, Respondents.
    Second Department,
    April 20, 1906.
    Executors and administrators — when contract of decedent to pay wages to adult son is not established — contract to. pay wages to married daughter warranted by the evidence.
    When an adult son continues to live with his father and renders services, the law will not imply a promise to pay. When the only evidence of an express promise to pay is the testimony of the son, who says that he worked his father’s farm for his board and lodging and fifteen dollars per month, the contract to pay is not sufficiently established.
    
      A promise to pay wages to a, married daughter, who performed hard and cdn- • tinuous work in place of her mother, is sufficiently established by the evidence of her husband showing an express agreement to pay made to him by the decedent, . ' , Other minor claims against estate considered. • ■
    Appeal by Mary Milligan Jensen, from a decree of the Surrogate’s Court of the county of Orange, entered in said Surrogate’s Court on the 12th day of July, 1905, finally and judicially settling the accounts of the administrators of the estate of John Milligan, deceased. i
    
      Charles C. Elston, for the appellant.
    
      William P. Gregg, for the respondents.
   Jenks, J.:

The administrators are charged with $1,690.71, and are credited with $1,071.79, of which the expenses of administration are $329.16 and debts of the deceased are $610. The balance for distribution is $618,92. Of this sum Agnes'M. Welsing is to retain $311,78 in-part payment of her claim of .$1,096, ■ and Frank Milligan is to retain $307.14- in part payment of his claim * of $1,080. Mrs. Welsing and Mr. Milligan are daughter and son of the intestate, respectively, and his administrators. They received their letters on April 23, 1904. On February 1, 1905, Mr. Milligan filed a claim against the estate, dated November 12,1904, “To.services rendered, as farm worker and manager at'$15 per mo. for 6 years, $1,080.00.” On February 1, 1905, Mrs. Welsing filed a claim against the* estate • dated May 18, 1904, for services from April 1, 1898, to November 12, 1900, 31J months at $12 per month, $378; to services as housekeeper February 8, 1901, to April 1, 1903, at $15, $386; to services as housekeeper per agreement with'Lquis C. Welsing, April 1, 1-903, to April 1, 1904, at $1 per day, $365 ; in all, $1,129, with credits of $33. These claims were stated in the account. Another daughter of the intestate contested the account, and trial was had before the surrogate. - At the first hearing the contestant appeared" in person without attorney, and "other children of the intestate appeared likewise. At' that hearing Mr. Milligan, the claimant, testified that his father was a farmer, that he resided with his father up to the time of death, and worked on the farm. When a member of a family, after he is twenty-one, continues to live with the family, and thereupon and thereafter renders services, the law will not “ imply a promise to pay on either side.” (Williams v. Hutchinson, 3 N. Y. 312; Reid v. Farrar, 6 N. Y. St. Repr. 199 ; Marion v. Farnan, 68 Hun, 383, 387; Wilsey v. Franklin, 57 id. 382; 10 N. Y. Supp. 833.) So far as any express contract or understanding is concerned the claim rests upon the oral testimony of the claimant alone, and even that testimony is vague and indefinite. He testifies : I worked for fifteen dollars, and my clothing, per month. I made my home there. The fifteen dollars was for the value of services in addition to the board and clothing which was furnished by my father., I worked for fifteen dollars a month and my board and clothing.” This is all of the evidence that bears upon the question of contract. I think that this claim is not established by the “ very satisfactory evidence ” required by the rule in such cases: (Matter of Marcellus, 165 N. Y. 70, 76; Walbaum v. Heaney, 104 App. Div. 412, 414; Matter of Van Slooten v. Wheeler, 140 N. Y. 624.) I think that upon the evidence the first ahd second items of Mr.' Welsing’s claim cannot be allowed for the reasons heretofore stated. I am not prepared to hold that the evidence is insufficient to support the third item. The evidence of the -sister, Eleanor Milligan, whose interest is presumably adverse to that of the claimant, is that the latter did hard and continuous daily work taking her mother’s place in her father’s 'house after she married Mr. Welsing. Eleanor Milligan testifies to a conversation between • Mr. Welsing, her .husband, and her father, which establishes an agreement by the father to pay his daughter on condition that she would remain at home and take up the duties of a working housekeeper; and Mr. Welsing gives evidence of a specific agreement to pay his wife a stated sum for the services. That such an agreement should be made is entirely natural; that the services were performed is beyond question. The claim was not stale, and the claimant was permitted to testify that she demanded wages and to state a plausible reason why they were not paid to her by her father. The ad ministrators Avere allowed a payment to Mr. Yaninwegen. His claim is objected to as “ fraudulent, excessive, and trumped up.” The voucher in the record is for a balance of $202.63. Eote due February 27, 1895, $376.48. Interest, $208.94. Bent from April 1, 1899, to April 1, 1904, at $200va year, $950,. and certain items that, after credits, make the amount of $1,149.15. It appears that the claimant receipted in full for $360. The point. is made that it appears that the note is outlawed. It is certainly the duty of an executor to raise the question of the Statute of Limitations. (Matter of Goss, 98 App. Div. 489 ; Butler v. Johnson, 111 N. Y. 204.) But the voucher shows that the Claim for “ balance ” and for rent largely exceeds the payment. When neither, the debtor nor the creditor has .made application the court may do so. And certainly the payment of $360 may be applied to the “balance” if that was shown to be justly due,- or to the rent under like conditions, (Livermore v. Rand, 26 N. Y. 85.) The objection, may. be regarded as challenging the payment, and there should be more, clear and ■explicit, testimony as to that fact, the burden.of impeaching them,, of course, remaining with the contestant. (Boughton v. Flint, 74 N. Y. 484.) The payment of a professional ■ bill of a physician was met by the objection that the services were rendered to the son of the* intestate, who was not a minor. The physician was the ■ family doctorthe services were shown, as rendered to the intestate’s son, who was a member of his household, and there is mbreover no proof that lie was not a minor. The objection to the payment to Mr. Welsing for services was not sustained:

The decree, in so far as it allows the claims of Mr. Milligan, Mrs. Welsing, the payment to Mr. Vaninwegen, and commissions, must be -reversed and a new hearing be ordered upon these matters. before the surrogate.

Woodward, Hooker, Gaynor and Rich, JJ., concurred.

Decree "of the Surrogate’s OoUrt of Orange county reversed and new hearing ordered before the surrogate.  