
    Ella Spraker, App’lt, v. Daniel J. Dow as Sole Executor, etc., of Sarah Hilton, Deceased, Resp’t.
    
      (.Supreme Court, General Term, Third Department,
    
    
      Filed May, 1888.)
    
    1. Executors and administrators—Estate of decedent—Evidence of CLAIM FOR SERVICES UNDER A VERBAL PROMISE OF DECEDENT.
    The plaintiff went to live in her grand parents’ family as a domestic pursuant to an agreement made between her father and grandfather. She brought this action against her grandmother’s executor upon an alleged promise which is stated in her complaint as follows: “That after the plaintiff had entered the service of said deceased as aforesaid, and while continuing therein, the said deceased promised and agreed to and with said plaintiff that if plaintiff would stay with and remain in the service of the deceased, as aforesaid, she, the said Sarah Hilton, deceased, would give her, the said plaintiff, the sum of $250-in her said deceased’s will * * * Held, that claims of the nature of the one here asserted against the estate of deceased persons based upon no agreement clearly expressed, or satisfactorily established by reliable evidence, should be carefully scrutinized by courts to the end that speculative or fictitious claims should not be encouraged.
    2. Same—Consideration for promise.
    The promise of Sarah Hilton was without consideration, and in no manner connected with any business which she conducted separate from her husband, and did not in terms or by necessary implication create a charge upon her separate estate. Held, that such a promise, made under such a state of facts, created no legal liability.
    Appeal by the plaintiff from a judgment entered in favor of the defendant, upon the report of a referee.
    
      L. W. Baxter, for app’lt; W. C. Lamont, for resp’t.
   Ingalls, J.

We have carefully examined this case, and we are convinced that the decision of the learned referee, is correct in regard to the facts, and the law. In the spring of 1874, the plaintiff became a member of the family of her grandfather, Phillip Hilton, as a domestic, being then about twelve years of age. She went then pursuant to a parol agreement made between Phillip Hilton and Joseph Blythe, the father of the plaintiff, the terms of which were, that Phillip Hilton was to provide the plaintiff with board, clothing and schooling, and if she remained there until she married or became twenty-one years of age, and was a good girl, and obedient, she was to have a little better done for her. Such seems to have been substantially the arrangement under which she entered the family of her grand parents. Phillip Hilton, was at the time, a farmer in comfortable circumstances, and managed his farm, transacted his business and provided for his family. His wife Sarah Hilton, the testatrix, managed the household affairs, but beyond that seems to have had no control. She possessed a separate estate of about $4,000, which she managed. The parents of the plaintiff were in indigent circumstances, and probably unable to provide for the plaintiff. The plaintiff remained in the family of her grand parents between three and four years, when she left and went to her father’s, and remained there one week, and then according to the evidence of her father, left on foot, and without informing her parents of her purpose in leaving, contracted a marriage with a man by the name of Harvey Spraker, who was considerably her senior, of intemperate habits, and without property. The grand parents had no knowledge of her intended marriage when she left them, and were greatly disappointed and incensed by her conduct in that respect. The plaintiff seems to have been industrious and faithful, during her service, and had she remained in the family until she became twenty-one years of age, or had married with the approbation of her grand parents, doubtless she would have been suitably provided for by them.

As it was, she received provisions and household furnitnre, to aid her in keeping house. By this action the plaintiff sought to recover against the estate of her grandmother, Sarah Hilton, the sum of $250, upon an alleged promise, which is stated in her complaint, as follows:

‘1V. That after the plaintiff had entered the service of said deceased, as aforesaid, and while continuing therein, the deceased promised and agreed to and with said plaintiff that if the plaintiff would stay with and remain in the service of thé deceased, as aforesaid, she, the said Sarah Hilton, deceased, would give her, the said plaintiff, the sum of $250, in her, said deceased’s will; that she, said deceased, would make and incorporate in her last will and testament, a provision or legacy of the sum of $250 to be paid to said plaintiff, as a consideration and payment for the said services plaintiff had performed for her, the said deceased, and for the services to be performed by said plaintiff as aforesaid, until said plaintiff should get married or until she arrived at the age of twenty-one years, and that she, said deceased, would direct the payment of said sum from out of the estate of said deceased, as aforesaid.

This pretended agreement between the plaintiff and Sarah Hilton, was not sought to be established by proof of any special agreement between them, by any person who was present, at the making thereof, but by sundry declarations claimed to have been made by Sarah Hilton, to third parties, during the life of her husband, Philip Hilton.

The witness, Nicholas Strobeck, stated a declaration of Sarah Hilton, as follows: “Said she was a good girl, and she would do well by her, if she stayed till she got married or till she was twenty-one.”

The witness, Jeremiah Hynds, testified: “Mrs. Hilton said she would do well by plaintiff.”

The witness, Benjamin Fanning, testified: “Heard Mrs. Hilton say that if plaintiff was a good girl, and stayed with her until she was married, or twenty-one years old, she woüld do well by her.”

Judson Kaiker, another witness, stated that he had a conversation with Mrs. Hilton, in which she said, “ she had agreed, if plaintiff stayed with her till she married, to give her $250. Upon his cross-examination the witness stated: “ She said she was to give her $250 in her will, when she got married, and being she had married that drunken loafer, she would not get a thing.”

The husband of plaintiff was examined as a witness in her behalf, and stated a conversation with Sarah Hilton: “ She said she told plaintiff she would, make her $250 in her will, if plaintiff would stay until she got married, or until she became twenty-one years old.

The father and mother of the plaintiff were examined as witnesses, and their evidence furnishes no support to any such claim. We have referred to the testimony of the several witnesses, with the view to ascertain upon what evidence the pretended agreement rested and under what circumstances the declarations of Sarah Hilton were claimed to have been made, and to discover whether and to what extent, such statements were, in language, or substance, alike, and consistent. We are convinced that they are too loose, conflicting and unreliable, to furnish the elements of a valid agreement, and to constitute the basis of a legal cause of action, against the estate of a deceased person. The declarations thus proved, seem rather in the nature of gratuitious expressions made by Mrs. Hilton, which obviously proceeded from no definite or fixed purpose in her mind, and without the remotest intention of creating a legal liability. Whatever she promised was purely voluntary as she was under no legal obligation to compensate the plaintiff for her service, not having been a party to the original agreement under which the plaintiff entered the family as a domestic. Mrs. Hilton doubtless entertained kindly feelings towards the plaintiff, while she remained in the family, and if she had not departed in the manner she did, and had not contracted a marriage so distasteful to her, and apparently so inappropriate and improvident, it is quité probable that she would have provided to some extent, for the plaintiff, by her will or otherwise. Such provision would have been voluntary and gratuitous, rather than the performance of a legal obligation. The referee has made the following finding:

11. That after the plaintiff had commenced the domestic service under and in pursuance of the agreement and arrangement between her father and grandfather and continued the service, her grandfather also fully performing his part of the terms thereof for more than the one-half of the entire time of her service, the said Sarah Hilton told her, if she was a good girl and staid till she got married or twenty-one years of age, she would give her $250 in her will.” The referee further finds the following: 9. That

she did not stay, and live with her grandparents till she got married, or till she was twenty-one years of age, but left one week before such marriage, and never returned to such service.”

This latter finding of the referee is sustained,.by the evidence, as to the letter and spirit of the alleged provision in regard to the condition upon which the contemplated, testamentary provision was made to depend, the plaintiff did leave the service, without the permission of her granparents, and without informing them of her intended departure or the purpose thereof. One week intervened between the time she left, and the marriage; so that there was strictly a violation of the agreement on her part, and a failure of the condition upon which the alleged promise rested. But beyond that, and what was evidently regarded by Mrs. Hilton, of far greater consequence, the plaintiff forfeited her confidence and respect, by the manner she abandoned the family, and by the unfortunate marriage which she contracted. The evidence has produced upon our mind the conviction that this claim is the result of an after thought on the part of the plaintiff, and is rather experimental than otherwise. Claims of the nature of the one here asserted against the estates of deceased persons,_ based upon no agreement clearly expressed, or satisfactorily established by reliable evidence, should be carefully scrutinized by courts, to the end that speculative or fictitious claims should not be encouraged. Obviously it would not be difficult for a party, moved by a selfish motive, to gather up loose expressions, made by a person while living, to third parties, who possibly misapprehended what was said, and weave them into such a form, as to constitute the elements of a cause of action against the estate of such person after death. Again Sarah Hilton was a married woman, residing with her husband, and being supported by him, at the time the pretended agreement was made by her with the plaintiff, and during the period the latter rendered the service in the family, under the agreement between Philip Hilton and the father of the plain tiff, who was, during her infancy, entitled to her earnings, and liable for her support. There is no evidence, which we discover, to the effect that the plaintiff manifested unwillingness to become a member of the family of her grandparents, or to continue there; or that there was any change in the nature of her service. The promise of Sarah Hilton, under the circumstances, was gratuitous, without consideration, and in no manner connected with any business which she conducted separate from her husband, and did not in terms, or by necessary implication, create a charge upon her separate estate. .Such a promise, made under such a state of facts, created no legal liability. Eisenlord v. Snyder, 71 N. Y., 45; Yale v. Dederer, 22 N. Y., 450; Same, 18 N. Y., 265; Linderman v. Farquharson, 101 N. Y., 434. We fully recognize the rule, established by a class of adjudications, to the effect that a valid contract may be made by a party competent to contract, and based upon an adequate consideration, testamentary provision, and in default of making such provision, an action may be maintained by the party who rendered the service under such an expectation, and a recovery may be had to compensate for such service; that, however, is not this case, as it is lacking in several of the required elements to constitute such a cause of action. The judgment must be affirmed with costs.

Learned, P. J., and Landon, J., concur.  