
    Havens v. Havens et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    December 13,1888.)
    1. Executors and Administrators—Actions—Evidence—Promise of Testator.
    Evidence that plaintiff lived for many years with his family on the farm, and in the house of his father; that he worked some on the farm, but was away the larger portion of the time at work at his trade; that he built additions worth several hundred dollars to the house, and occupied them himself; thathepaid for many articles brought to and used on the farm; ate at his father’stable, most of the time furnishing much of the provisions; and paid his father for produce of the farm while living there,—will not support an action against the father’s executors for the price of the work and materials, as in case of such relationship an express promise of payment, or circumstances equivalent thereto, is necessary to establish a liability.
    
    8. Same—Appeal—Review—Rulings on Evidence.
    Plaintiff having failed to establish a promise of payment, the questions as to how much and whose money he expended for the benefit of testator become immaterial,- and the exclusion of testimony relative thereto was not error.
    Appeal from special term, Suffolk county.
    Reference under the statute of a disputed claim by Sidney R". Havens against" Adeline P. Havens and Lewis Bowden, executors of Nicoll Havens, deceased. It -was proved before the referee that plaintiff, who was testator’s son, had been to California, and returned in 1868, bringing with him his wife and children, with whom he lived in testator’s house until the latter’s death. He did some farm work, and had some farming tools of his own, but was a carpenter, and principally engaged at his trade, being a large part of the time' away. At different times during his residence with his father he built additions to the house, worth several hundred dollars. About 18 months before' testator’s death he told the draughtsman of his will that he had given the farm1 to plaintiff by 1ns will, and wanted him to go on with it; that he (testator)' was unable to work, and would always be, but that plaintiff was well enough* off with what he had given him. Different amounts were shown to have been1 paid at various times by plaintiff for labor done on the farm, and for articles' purchased and taken there,—such as hay, pigs, and material used on the buildings. During a great part of the time plaintiff and family ate at the same ■table with testator and his wife, and there was evidence that plaintiff furnished a considerable quantity of the provisions, and that he paid testator for many .articles produced on the farm and used on the table. There was no proof of the ownership of the money with which plaintiff paid for labor, etc., nor of .any express promise by testator to pay for anything. The referee found for •defendants, and judgment was entered accordingly. Plaintiff appeals.
    Argued before Barnard, P. J., and Dykman and Pratt, JJ.
    
      T. F. Bisgood, for appellant. T. M. Qrifflng, for respondents.
    
      
       Where one rendering services is a member of the family of the person served, re-ceiving support therein, a presumption of law arises that such services are gratuitous,- and.to authorize a recovery therefor an express promise of the party served must be' shown, or such facts and circumstances as will authorize a finding that the services' were in the expectation, by one of receiving, by the other of making, compensation therefor. Keegan v. Estate of Malone, (Iowa,) 17 N. W. Rep. 461. See, also, on the neces* sity of showing an express promise in such cases, Ulrich v. Arnold, (Pa.) 13 Atl. Rep, 831, and note; Neale v. Engle, (Pa.) 7 Atl. Rep. 60, and full note; Ormsby v. Rhoades, (Vt.) 10 Atl. Rep. 722, and note; Mobley v. Webb, (Ala.) 3 South. Rep. 812; Doremus v. Lott, 1 N. Y. Supp. 793; Cooper v. Cooper, (Mass.) 17 N. E. Rep. 892.
    
   Pratt, J.

We think there was a total failure, under well-settled principles ■of law, on the part of the plaintiff to prove any express direction of the testator for the doing of work, or furnishing materials, or any promise to pay for the same. The plaintiff resided on the farm, and apparently had the common •use of it with his father for many years. The improvements were for the convenience of the plaintiff, and the money paid was partly, at least, for his benefit. We might surmise that, he expected to have the farm at his father’s •death, and thus reap the benefit of the improvements. Even in such case the • estate would not be liable to pay in the absence of a promise of that kind. The case is barren of any direction on the part of the testator to the plaintiff to pay out money or make improvements. The fact that the plaintiff resided ;So long with his father, and that no accounting seems to have been had, renders it probable that the plaintiff never intended to charge, and the father never expected to pay, for any of the items claimed. The case seems to fall within the principle stated by the referee, and enunciated in the following decisions,—Bowen v. Bowen, 2 Bradf. Sur. 336; Kearney v. McKeon, 85 N. Y. 137; Lynn v. Smith, 35 Hun, 275,—to-wit: That no recovery can be had by near relations living upon the same premises in common, or members of the same family, without proving an express promise to pay, or proving such facts -and circumstances as to make the inference plain that there was such a promise.

The exception to the ruling of the referee in excluding the question put to -the plaintiff as a witness in his own behalf need not be considered, as the .amount paid never became material through failure to prove any liability. It was of no importance whether plaintiff expended much or little, unless there ■was a promise to repay on the part of testator. The question, “State whose money it was that you paid to these different parties, ” was also properly excluded, for the reason just stated. Assuming that it was plaintiff’s money, he could not make his father his debtor without a request to pay. The question, “Did you do any farming on your own account?” was not well taken, as •the matter was immaterial. The irresistible conclusion, from a careful reading of the testimony, is that the plaintiff failed to make out a case.

Judgment affirmed, with costs.

Barnard, P. J., concurs.

Dykman, J., (concurring.)

This was a reference under the statute of a •disputed claim of the plaintiff against the administrator of the defendants. The plaintiff was a son of the testator, and, with his family, occupied a portion of his father’s dwelling-house in Suffolk county, from 1868 until his .father’s death, in 1885; and this claim is for services during that period, and for materials furnished in building, and work performed in the erection of •certain buildings. The referee has found that the materials were furnished for the building, and the work was performed; that the labor was not performed by the plaintiff under an agreement with his father, nor were the materials furnished or money paid for labor performed by other parties by authority or under the order or direction of the testator, and that the plaintiff is not entitled to recover therefor. The report is sustained by the proof. The plaintiff falls within the line of decisions in this state respecting services performed by members of the same family, where no implied promise to pay therefor is raised by the law, and the report of the referee is justified by that class of cases.

The judgment should therefore be affirmed, with costs.  