
    Martin vs. Wright’s Administrators.
    NEW YORK
    May, 1835.
    Where a party renders services for another in the hope of a legacy, and in sole reliance upon the testator’s generosity, without any contract express or implied that compensation shall be provided for him by 'will, and the party for whom the services were rendered dies without making such provision, no action lies ; but where, from the circumstances of the case, it is manifest that it was understood by both parties that compensation should be made by will, and none is made, an action lies to recover the value of such services.
    This was an action of assumpsit for the board and lodging ofAlexander Wright, the,intestate, and for work, labor andservices rendered for him. The intestate was the father of plaintiff’s wife; he died in 1830, an aged man,' worth considerable property. About' 15 years previous to his death, his wife died. After her death he continued to reside on his own farm, letting it out to tenants, whom he took into his house, and with whom he boarded ; but whenever he was sick or unwell, he went to the house of the plaintiff, his son-in-law, where he remained from time to time until he recovered his health, and then returned to his own house ; also, sometimes when in health he resided with his son-in-law and daughter. The plaintiff’s residence was near that of the intestate, and the plaintiff, his wife and family, rendered many services to the intestate, in superintending his business, in providing for his comfort, and in rendering him such personal services as his old age and infirmities required. The intestate had several children, but all who were in a condition to render him much service, resided at a distance from him, except his daughter, the wife of the plaintiff. The intestate was gratified by the attentions bestowed upon him, and services rendered for him by the plaintiff and his family, and expressed his intentions to make compensation for the same, by making provision in his will for the children of the plaintiff, over and above the full share of their mother, to which she would be entitled as one of his children. Accordingly, in 1827, he made a xvill, by xvhich he devised and bequeathed to the children of the plaintiff about the sum of $1500, and then made an equal distribution of the residue of his estate among his children, giving to the plaintiffs xvife her full share. In 1828, he made a nexv xvill, substantially like that ot 1827, xvith a fexv alterations. In 1828 or 1820, Joseph Wright, a son of the intestate, came from Canada, and xvent to reside on the farm and in the house of the intestate, and after that time until his death, the intestate resided xvith Joseph. In the summer of 1830, the intestate took both his wills to an attorney, and gave him instructions to draw up a new xvill, making very considerable alterations in the disposition of his property, but still making provision for the children of the plaintiff over and above the full share of their mother, to the amount of about $600. The new will xvas not drawn. On the third day of November, 1830, Joseph Wright, the son of the intestate, and with whom the intestate resided, xvent to the attorney and stated that he was instructed by the intestate to call for the wills, and the attorney accordingly delivered the wills to him. On the seventeenth of the same month the intestate died. The wills could not subsequently be found. Joseph 
      
      Wright, on being cited before the surrogate, stated that he delivered them to the intestate, and that on diligent search after his death they could not be found. Josoph Wright and one Armstrong, took out letters of administration on the estate of the intestate, and the plaintiff having failed to obtain that compensation for the services of himself and family, which the intestate had declared he intended to make by his will, Commenced this suit. The cause was heard before referees, and in addition to the above facts, the plaintiff produced, on the hearing, a bond, bearing date in October, 1827, executed by himself to his children, reciting that Alexander Wright (the" intestate) had that day made and published his last will and testament, whereby he had given a portion of his estate to the children of the plaintiff, and had appointed him the plaintiff, guardian of the said children during their minority, and specially directed him verbally as to the disposition of the property in case of the death of the said children, or either of them; and conditioned for the faithful performance of such trust. The execution of this bond was proved by the subscribing witness, who testified that he drew up the same at the instance, as he believed, of the intestate. There was also produced on the hearing a receipt, signed by the plaintiff, bearing date in October, 1827, by which the plaintiff acknowledged to have received of Alexander Wright six cents, in full of all demands or accounts from the beginning of the world to the date of the receipt, provided his will lately made is carried into effect This receipt was handed over by the plaintiff to the administrators, after the death of the intestate, together with a bundle of other papers belonging to the intestate during his lifetime, and which had been left in the custody of the plaintiff. The defendants objected to its being received in evidence, without proof of its having been in the possession of the intestate; but the referees received it. The defendants proved the giving of a receipt by the plaintiff to the intestate, in November, 1827, similar to the receipt produced, but having no reference to a will made by the intestate. The referees made a report in favor of the plaintiff, for $435,75. The defendants moved to set aside the report.
    
      S. Stevens, for the defendants.
    
      C. L. Allen, for the plaintiff.
   By the Court,

Savage, Ch. J.

The facts disclosed by the case presented to us, on the motion to set aside the report, were sufficient to warrant the referees in finding that the services for which compensation is sought by this action were never intended, on either side, to be gratuitous. A reference to some of the cases cited will show the circumstances under which services rendered shall be considered gratuitious. The case of Osborn v. The governors of Guy's Hospital, 2 Strange, 728, is often referred to on this point, though it was only a nisi prizes decision. That was an action for services rendered to Mr. Guy, in his stock affairs. It appeared as if Osborn did not expect to be paid, but to be considered for it in the will of Guy; and the chief justice directed the jury, that if such was the case, they could not find for the plaintiff, though nothing was given him ; that they should consider how it was understood by the parties at the time of doing the business, and that a man who expects to be made amends by a legacy cannot afterwards resort to his action. So, in the case of LeSage v. Coussmaker,1 Esp.N.P. Cases 189, Lord Kenyon said, that the law was well settled, that if the plaintiff had performed the services without any view to reward, but to legacy, that a demand for services could not be sustained ; of that the jury were to judge. In the case of Jacobson v. Executors of Le Grange, 3 Johns. Rep. 199, the plaintiff lived with hisuncle, the testator, athis request, eleven years; and the uncle said the plaintiff should be one of his heirs, and proposed to plaintiff’s mother-in-law to give him £350 in land, as a compensation for his services. The plaintiff had never made any claim upon the testator. The jury found a verdict for the plaintiff, Van Ness, justice, in giving the opinion of the court, intimates that the plaintiff could not recover, if the services were rendered without any view to compensation other than such as the testator chose to make, by his last will and testament; but he also says, that the services having been performed for the benefit of the testator, with his knowledge and approbation, thelawimplies a promise to pay unless it can be shown that payment was never intended. In Patterson v. Patterson, 13 Johns. R. 3.79,80, the same ^earne<^ judge says, that the plaintiff is entitled to a reward for his services, unless they were tobe performed gratuitously. He cites the case I have above referred to, in Strange and Espinasse, and intimates, that if the understanding of both parties was that the services should be paid for by a provision in the will, a right of action would accrue, provided no provision should be made. So, too, in Little v. Dawson, 4 Binn 111, the rule is said to be, that if the services were rendered merely in expectation of a legacy, without any contract, express or implied,but relying solely on the testator’s generosity, no action can be maintained ; but in that case the testator had said that he meant to provide for plaintiff as a child, which was left as a matter of fact for the jury to decide whether the services were gratuitous. These cases surely go far enough in favor of the defendants. It was a question for the referees in this case to decide whetherthe services were intended tobe paid for. They have found that compensation was expected and intended at the time they were rendered, and the evidence fully sustains their finding.

The circumstances under which the receipt was given are sufficiently explained. If the receipt which was produced was that which was executed in presence of the witness Cow-en, then it is clear that the plaintiff intended to have the compensation given by the will which had been executed but a short time previous. Had it been absolute in its terms, it must be understood as made in reference to that arrangement: and if it was understood that a new arrangement had become necessary, the plaintiff had no reason to expect that the provision for his children would be altered. It was certainly understood by both parties in this case that compenastion should be made. The measure of compensation intended by the intestate was made known, and was satisfactory; after that the defendants should not be permitted to defend themselves by the absence of any testamentary provision. The rule, I apprehend, was never intended to apply to cases where it was understood by both parties that compensation should bemade; but merely to cases where services were rendered apparently gratuitously, under an expectation of a legacy.

Motion to set aside report of referees denied.  