
    Emma Barrett, Appellant, v. James B. Bailey, as Administrator, etc., of Asa A. Shepherd, Deceased, Respondent.
    
      Agreement as to wages-r-when a finding that it was “a present or a voluntary gift ” will he set aside.
    
    A domestic who for twelve years had worked for a person, since deceased, and hack received therefor wages at the rate of five dollars per month, presented a claim, against his estate based upon an alleged agreement made by him to pay her, at his death, twenty-five dollars per year as additional compensation. Upon, the hearing of the claim the claimant’s husband gave evidence in support of" the alleged agreement, which was corroborated by the evidence of two disinterested witnesses, one of whom testified that he had endeavored to procure-the services of the .claimant and was willing to pay her higher wages than. the decedent, and that in a conversation with the decedent, the latter, as a reason why the claimant should remain in his service, stated that there had been, a bargain between him. and the claimant that at his ’death she should ‘ ‘ have-525 a year for each year that she was there as wages for her work.”
    
      Held, that a finding that this arrangement was a promise of “a present or a voluntary gift ” should be set aside.
    Appeal by the plaintiff, Emma Barrett, from a judgment of the-Supreme Court in favor of the defendant, entered in the office of the clerk of the. county of Saratoga on the 24th day of March, 1899,,, upon the report of a referee dismissing the.claim filed by the plaintiff against the estate of Asa A. Shepherd, which was rejected by the defendant and referred under the statute.
    The issues in this action arise upon .the defendant’s rejection of" plaintiff’s claim. Upon defendant’s offer to refer the issue was-referred to a referee to hear, try and determine. From the judgment dismissing the claim entered upon the report of said referee f his appeal is taken.
    
      Nash Rockwood, for the appellant.
    
      John J. Healey, Jr., for the respondent.
   Smith, J.:

The judgment appealed from denied to the plaintiff the right to xecover moneys claimed to be due upon a special contract with -defendant’s intestate for extra compensation for services to be paid At his death. For twelve years prior to 1890 she worked in his family as a domestic and received therefor compensation at the rate of five dollars a month. Plaintiff here claims a further consideration in an agreement by him to pay at his death twenty-five dollars per year as additional compensation.

The finding of the referee is that no such contract was made, and "that what was said in reference to the payment of twenty-five dollars a year “ was simply that he would make her a present or a voluntary payment, the same as he did his children,” and the referee ■further finds that there is no proof that he made his children presents. The promise of Shepherd at his death to give to the plaintiff twenty-five dollars a year for her work for him seems to be proven. This fact rests not alone upon the testimony of the plaintiff’s husband. His testimony is corroborated by the witness Van -Order and the witness Crandall. The witness Crandall, a practicing physician of the town, was endeavoring to procure the services of the plaintiff. It is a fair inference from the evidence that he was "willing to pay the plaintiff from two to three dollars a week for her ^services. In speaking of a conversation with the deceased, he swears: He gave this as a reason why she should remain with him, that "there had been a bargain between him and Mrs. Barrett, that at Iris death she should have $25 a year for each year that she was •there as wages for her work.” The evidence of the witness Van •Order, while not so specific, is of the same import. There further appear special reasons why the contract should have been made in this form. From the evidence of the witness Mott, it Appears that the deceased said that it made no difference what the plaintiff had; “ that it would go right into her family; said that she «clothed her brother ; said he wished he could save something for her.” At other times the deceased said that he was keeping this money for her and that it was bearing interest.

With the fact clearly established that he had made the statemént to her that she was to receive twenty-five dollars a year in ’ addition to her wages at 'his death, the finding of the referee that this was a promise of a present or voluntary gift which was not in consideration of her services, is not satisfactory. While the promise was at times spoken of as one to make a present, such promise undoubtedly acted as a material inducement to her in remaining in the service of the deceased. She declined wages from Dr. Crandall materially in excess of the five dollars a month which she was receiving from the deceased. Thus induced by defendant’s intestate to remain in his-service, we see no moral or legal ground for refusing her the benefit of the promise. That claims against estates should be most carefully scrutinized and should be established only upon clear and satisfactory proof is a júst rule of decision. That these promises were made to the plaintiff and were relied upon by her seems to have been-clearly proven. From these facts a legal liability follows.

All concurred.

Judgment reversed on the law and facts, referee discharged and new trial granted, with costs to appellant to abide event, subject to sections 1835 and 1836 of the Code of Civil Procedure.  