
    In the Matter of the Application to Mortgage, Lease or Sell the Real Estate of David Merchant, Deceased, Sarah A. Merchant, as Administratrix, App’lt, v. Warren Merchant, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 20, 1889.)
    
    1. Surrogate’s jurisdiction.
    The fact that a claim was presented to, and rejected by, the administratrix does not deprive the surrogate of jurisdiction to determine its validity in a proceeding for the sale of real estate to pay debts.
    2. Decedent’s estate—When claimant cannot recover eor services rendered after decedent’s death.
    Where the contract for services was not for any fixed time, and was not in writing, the claimant cannot recover of the estate for services rendered after the decedent’s death.
    3. Same—Interest.
    Where the claim for services was unliquidated, interest should not be allowed.
    4. Same—Evidence.
    In a proceeding for the sale of real estate, to pay debts, it is not error to allow a claimant to testify that he performed work on the decedent’s premises, and to state what he did there aside from personal transactions with the decedent.
    5. Same—Petition for sale of real estate.
    The petition may state facts on information and belief, and if it states facts giving the surrogate jurisdiction, it need not necessarily state that diligent inquiry has been had.
    6. Same—Accounting not necessary.
    In determining whether the personal estate is insufficient to pay debts, the surrogate may consider the inventory on file, and a final accounting is not necessary before making the order of sale.
    Appeal from the decree of the surrogate of Oswego county, entered August 13, 1888, for the sale of the real estate of David Merchant< deceased, for the payment of debts.
    David Merchant died intestate, April 14, 1887. Letters of administration were on the 23d of August, 1887, issued to his widow Sarah A. Merchant. On the 15th of September, 1887, she filed an inventory showing that there was personal property to the amount of $446.10, applicable to the payment of debts. On the 7th of March, 1888, under an order of the surrogate’s court, the administratrix caused to be published a notice to creditors to present claims. On the 9th of April, 1888, Warren Merchant, claiming to be a creditor of the estate to the amount of $1,537.83, with interest from December 1, 1887, presented a petition to the surrogate for the sale of the real estate for the payment of debts. Shortly, thereafter, he presented his claim to the administratrix, which she rejected and offered to refer. It was not referred. Upon the petition, a citation was issued to the proper parties and served, and a trial had before the surrogate. He found, among other things, that there "syas due to the petitioner on July 17, 1888, over and above all payments, the sum of $1,008.18.
    The administratrix appealed.
    
      James Gallagher, for app’lt; Samuel H. Wandell, for resp’t.
   Merwin, J.

The main question litigated before the surrogate was the claim of Warren Merchant against the estate. The fact that this claim was presented to and rejected by the administratrix did not deprive the surrogate of jurisdiction to determine its validity in the proceedings before him. Matter of Application of Haxtun, 102 N. Y., 157; 1 N. Y. State Rep., 164.

The claim was for work, labor and services upon the farm of the deceased from June 24, 1877, to December 1, 1887. The claimant was a son of the deceased, and a member of his family. It was therefore incumbent on him to show, either an express promise that his services should be paid for, or that such was the expectation on both sides. Williams v. Hutchinson, 5 Barb., 124, and cases cited; Green v. Roberts, 47 Barb., 521.

The surrogate finds that in August, 1881, there was an agreement between the deceased and his son Warren, whereby the deceased hired Warren to work for him on his farm, and agreed to pay him the going wages for such work during the working season, being from April first to December first of each year, and Warren should stay and work for him, and that Warren, under this agreement, worked two and one-half months in 1881, and eight months in each of the years 1882, 1883, 1884, 1885, 1886, 1887, making in all fifty and one-half months.

We think the evidence is sufficient to sustain, at least, a finding that there was a mutual understanding that Warren should be paid for his services what they were reasonably worth. That would be sufficient for a basis for the claim. The surrogate includes in the time of service eight months of the year 1887, being from April 1 to December 1. The deceased died on the 14th of April, 1887; so that the query is, whether, in such a case, the contract can be extended beyond the death. The contract here was not for any fixed time; there was no writing.

The claimant, if he recovers at all, recovers the reasonable value of the services that he performed for the deceased. We think he should not recover for anything occurring after the death. This would reduce the time to forty-three months.

As to the value of the services, as well as to the amount he worked each year, aside from 1887, there is no particular dispute. The facts in that regard were such that, if the evidence presented by the claimant was not correct, the true version could have been readily presented.

The surrogate apparently allowed interest from the close of each year’s service. In the account presented, interest was not claimed. In the petition it was claimed from December 1, 1887. There are cases holding that, upon an unliquidated demand for services, interest should not be allowed. Robinson v. Stewart 10 N. Y., 197; Gallup v. Perue, 4 Week. Dig., 353. That rule should be applied here, and interest only allowed from December 1, 1887.

Upon the trial, Warren Merchant being upon the stand as a witness in his own behalf, was asked the question .• “Did you perform work on these premises ?” This was objected to as incompetent under section 829 of the Code, and the objection was overruled and exception taken. The answer was yes. The question was then asked: “ State what you did there, aside from personal transactions, with Mr. Merchant ?” There was the same objection, ruling and exception. It is claimed that these rulings were erroneous.

In Lerche v. Brasher (104 N. Y., 157; 4 N. Y. State Rep., 335), being an action for services performed by plaintiff for defendant’s testator, the plaintiff was allowed to answer the question: “What was done by you, excepting, of course, personal transactions or communications with the deceased Mr. Yan Wych, from the time you first commenced your labor down to his death ? ” This was held, to be proper, it being said if there was any improper evidence given under it, the remedy was by motion to strike out.

In Denise v. Denise (110 N. Y., 562; 18 N. Y. State Rep., 873), where a wife made a claim on contract against the estate of her husband, she was asked as a witness, in her own behalf, the question : “ From the date of your marriage, who provided the necessaries for the house, and the support of the family ? ” This was held to be proper. In the present case it is to be borne in mind, that the fact simply of performance of work would not, as in some other cases, authorize any inference of an implied promise to pay. Nor was the evidence offered on that basis; we think the rulings were not erroneous. Besides, there is other evidence on tne part of the claimant uncontradicted, that shows substantially the same thing. So that the ruling, if wrong, was harmless.

It is further claimed by the appellant that the surrogate erred in overruling objections made to the petition to the effect that material allegations in it were on information and belief, and the grounds of the information were not stated; that the petition did not state that diligent or any inquiry was made to ascertain the truth of the facts stated, and no application had been made to the surrogate for an inquiry, as provided by section 2753. The petition seems to state all that the statute requires. The fact that some statements are on information and belief, does not affect the question. They must necessarily be so in many cases when the petition is by a creditor, and if he has credible information, there is no occasion to have the inquiry authorized by section 2753. As long as the facts are in the petition that give the surrogate jurisdiction, it need not necessarily state that diligent inquiry has been had. Matter of German Bank, 39 Hun, 181.

The truth of the statements was a matter to be investigated by the surrogate on the trial.

We think the objection was properly overruled.

The conclusion of the surrogate that the personal estate was insufficient to pay the debts, was justified by the case before him. He had a right to consider the inventory on file (Forbes v. Halsey, 26 N. Y., 60), and a final accounting was not necessary before making the order. Section 2759.

A point is made by the appellant as to the appraisal called for by section 2760. The proceedings of the surrogate under that section are not before us. The appraisal is not a part of the record. It seems to have been an ex parte proceeding. If not satisfactory to the appellant, she should have moved before the surrogate for relief, and if the order then made was not satisfactory, she would very likely have had a remedy by appeal.

No other questions are raised that call for special consideration. It follows that the decree is correct, except as to the amount of the debt to the respondent. That can be adjusted here under the power given by sections 2586 and 2587 of the Code. Forty-three months’ services at twenty dollars a month would be $860. Deducting payments of $157.50 allowed by the surrogate, there would be a balance of $702.50, which, with interest from December 1, 1887, to August 13, 1886, would be $727.21.

The decree should be modified by reducing the debt of Warren Merchant, as fixed by the decree, to the sum of $727.21, and, as so modified, should be affirmed, without costs of this appeal to either party as against the other.

Martin, J., concurs; Hardin, P. J., concurs in the result, saying that the ruling under section 829 is doubtful.  