
    
      In re Ryder’s Estate.
    
      (Supreme Court, General Term, Second Department.
    
    February 11, 1891.)
    1. Surrogate’s Jurisdiction—Claim by Executrix for Personal Services.
    Where an executrix presents a claim against her testator’s estate for personal services rendered testator in his illness, the surrogate’s court has jurisdiction to determine the issue in the same manner as other claims, under Code CiVil Proc. Ñ. Y. | 2739, providing that where a contest arises between the accounting party and any other parties, respecting a debt alleged to be due by the decedent to the accounting party, “the contest must be tried and determined in the same manner as any other issue arising in the surrogate’s court. ”
    2. Same—Contract for Compensation.
    Respondent was a daughter of decedent, the executrix and one of the beneficiaries of his will. Deceased was afflicted with softening of the brain, and a large portion of the daughter’s time was devoted to care of his person and surroundings. His mental condition was variable; at times he talked of going home, while to his nurse he correctly stated what disposition he had made of his property by will, and sometimes, recognizing the care taken oí him, he would declare his inten'tioii to compensate respondent. Held, that the proofs were sufficient to sustain the findings of the surrogate’s court awarding §1,000 as compensation.
    Appeal from surrogate’s court, Westchester county.
    The testator died at his home in Mount Kisco on the 3d of August, 1888, leaving him surviving, as his widow, Hester M. Ryder, and his daughter by a former wife, Sarah E. Hall, and the claimant, who is a daughter by his last wife. Mrs. Hall has been for many years residing away from home with her husband. The testator'owned a house and lot in which he and his wife, with the youngest daughter, resided alone together, until the latter was married to-Mr. Dromgooie, in or about the year 1881, when he also became a member of the family. Ho special agreement with him is shown, but while the claimant and her husband continued to live in testator’s house Mr. Dromgooie and Mr. Ryder both contributed in furnishing supplies for the family. About February, 1887, the testator became so ill from softening of the brain as to require considerable care. As the disease progressed more and more, attendance and services were required, until, towards its latter stage, they were almost unremitting in their character. Attendant upon and as a consequence of the disease he lost control over his organs of evacuation, and a large part of the time was devoted by Mrs. Dromgooie to the cleansing of his person, his linen and other clothing, bedding, and the carpet of his room. He required watching lest he should wander away, and much of the latter part of the period.had to be confined in his room. The most of these necessary offices were rendered by Mrs. Dromgooie, as it was difficult to keep a servant on account of the fetid condition of the atmosphere of the house. By his will, made prior to bis illness, and in which his wife and Mrs. Dromgooie were appointed executrices, he divided his property equally between his wife and two daughters. Mrs. Dromgooie presented a claim for these services in October last amounting to $2,160. but she had previously presented one for the same services amounting to only $1,080. The surrogate delivered the following opinion:
    “Undoubtedly the general rule is that, as between members of the same family, neither party can recover for services rendered, in the absence of an express agreement or promise to pay. This rule is founded upon the idea of reciprocity between them, and the fact that the value or benefits received by one are greater than those received by the other will make no difference. They must, however, be mutual. To illustrate: Suppose this claimant had sought to recover for services rendered before the testator became ill, she would have been effectively met by the rule in question; but when his illness became so serious as to deprive him of the power, in any manner, of reciprocating the care and kindness bestowed, and he became a grievous burden, one would have supposed the normal relation to have largely ceased, and, while the law of nature demanded that he should be properly nursed and cared for by his child, yet that those services should receive some compensation from his estate, if he left any, as against those entitled to share it, who contributed nothing to the disagreeable work. The fact that Mrs. Hall had a family of her own and lived at a distance'was a sufficient reason why she could not share in the nursing, etc., which naturally fell upon the claimant, who was an immediate member of-the family; but, as she could not contribute her personal services, it would seem but equitable that she should furnish an equivalent out of her portion of the estate. Our statute makes it the duty of the children of sufficient ability of any poor person, who is so impotent or decrepit as to be unable by work to maintain himself, at their own ■charge to maintain him. Why, then, in a case of this kind, should they not equally share, in some form, the burden his illness and the circumstances cast upon one? And it may be remarked in this connection that in the many cases cited by the learned- counsel, as well -as numerous others examined, none presents the precise state of facts under consideration here. In the leading case of Williams v. Hutchinson, 3 H. Y. 312, the claim was made by a stepson for services. So of Hill v. Hanford, 11 Hun, 536. In Wotherspoonv. Wotherspoon, 49 H..Y. Super. Ct. 152, there"appeared tobe only one son, and the claim related to the board of the father. Malthy v. Harwood, 12 Barb. 473, related to the case of a supposed apprentice, whose claim was for wages. In Bowen v. Bowen, 2 Bradf. Sur. 336, a claim for wages was presented against the .estate of his deceased brother. The case of Keller v. Stuck, 4 Redf. Sur. 294, approaches, in its facts, more nearly to this than any that has been brought to my notice. An administratrix of a deceased sister, and the only next of kin, except a nephew and niece, sought to prove a claim for services in nursing the intestate in her last illness. It did not appear what the nature and extent of the services were, and it was rejected on the strength of the decision of Williams v. Hutchinson. In certain cases where it is impossible, from the circumstances, to imply a contract between the parties, the law will imply one, as if, in the absence of a husband, a neighbor incur an expense in burying his deceased wife in a manner suitable to the husband’s condition in life, though without his knowledge, the law will imply a promise to reimburse the person who incurred the expense. Jenkins v. Tucker, 1 H. Bl. 90. So one might suppose that if a person were so entirely insane as to preclude the possibility of his making a contract, and were to be kept, managed, cared for, and controlled by another, ¿contract might be implied, so that the value of the sendees rendered might be recovered; but the answer to that would probably be that a committee might have been appointed who would have been competent to contract for him. The difficulty here, however, is that from the relation of the parties, as determined by most of the cases cited, no contract can be implied. There must be either an express agreement, or a promise to pay or reward for the services rendered, no matter however meritorious or equitable the claim may be. This brings us to the question as to whether there was any valid promise of reward made by him to Mrs. Dromgoole for her services. There is no doubt, from the evidence, that he made such promise, but counsel for contestant claims that he lacked mental capacity sufficient to render such promise of any binding force. The testimony on the subject is very meager, in view of the importance of it. There is an abundance on the subject of his physical weakness, but very little in the way of detailed facts and conversations tending to furnish a key to his mental condition. It was, doubtless, somewhat variable. At times he talked of going home, probably intending to indicate the home of his youth. This, accompanied by an attempt to getaway, would lead to the belief in some intellectual aberration at the moment. Again, following a cleansing of his person by the claimant, he would declare his intention to compensate her for the trouble he gave her. This showed a mind capable of being impressed by current facts and competent to apprehend their relations. He also told Hunter, his nurse, that he had made his will, and correctly stated what disposition he had made of his property. Hunter conversed much with him, but it is to be regretted that we have no details of such conversations. Still the evidence, scant as it may be, is deemed enough to warrant the conclusion that he had sufficient intellect to make the promises he did. It remains, therefore, to ñx a reasonable compensation for the services. It is apparent that there was a progressive increase of them as required and rendered, and for them a compensation cannot be expected equivalent to that charged by skilled, trained nurses. It is believed that $1,000, being very near the amount of the bill first rendered, will be a fair compensation. As this amount will be deducted from the whole amount, of the estate, each of the three who owed the natural duty will have equally contributed her share. Decree accordingly.” From this decree Sarah E. Hall appealed.
    Code Civil Proc. H. Y. § 2739, provides: “Upon a judicial settlement of the account of an executor or administrator, he may prove any debt owing to him by the decedent. Where a contest arises between the accounting party and any of the other parties, respecting any property alleged to belong to the estate, but to which the accounting party lays claim, or respecting a debt alleged to be due by the accounting party to the decedent, or by the decedent to the accounting party, the contest must be tried and determined in the same manner as any other issue arising in the surrogate court.”
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      Close & Robertson, for claimant. Fromme Bros., for legatee.
   Pratt, J.

The merits of the decree appealed from are sufficiently discussed in the opinion of the surrogate. From that opinion it appears that the-proofs were sufficient to sustain the findings, and that the latter justify the-conclusions of law deduced therefrom. But it is claimed by the appellant that-the surrogate had no jurisdiction to determine the issue at the time of tire trial. This point is not well taken. Under the provisions of 2 Rev. St. p. 88,. § 33, it was frequently held that a surrogate had jurisdiction to hear and determine any and all claims in which the executor was interested. Shakespeare v. Markham, 72 N. Y. 400; Kyle v. Kyle, 67 N. Y. 408. Section 2739 of the-Code of Civil Procedure is a codification of the former statutes, and no change of the practice seems to have been intended. The objection that such a claim could only be heard after an accounting was not valid, as that question was not raised by the answer to the petition. The answer only put in issue the question whether the services were performed under a contract, and their value. It must be taken as conceded, therefore, that the estate was ample for the payment of all the debts. The fact that the services might have been rendered, even although there had been no promise of payment, does not prevent the petitioner from claiming compensation. The other points are sufficiently answered in the opinion of the surrogate. Decree affirmed, With, costs.  