
    James Porter, Pl’ff, v. Thomas J. Dunn, Ex’r, Def't.
    
    
      (Court of Appeals,
    
    
      Filed March 1, 1892.)
    
    1. Decedent’s estate—Husband and wife—Evidence—Code Civ. Pro „ § 829.
    Plaintiff presented a claim against the estate of defendant’s testator for services performed by Ms wife for the testator, which was disputed and referred. Held, that as it was clear that the plaintiff’s wife was acting not for herself, but in the service of, and subordinate to, her husband, in. nursing testator, and so the husband was the proper person to maintain the claim, she was not incompetent, under § 829 of the Code, to testify to the contract or arrangement made for their performance.
    2. Same.
    Testator promised plaintiff’s wife that he would leave her $5,000 in his, will if she would nurse him. She cared for Mm eleven years, and he left her $500. _ The referee found for $7,599 less $500 paid and the general term cut it down to_ the $5,000 promised. Held, error; that the original promise way not carried out; he did give her $500, but that did not conclude plaintiff from claiming the reasonable worth of his wife’s service,
    (Earl, Ch. J., and O’Brien, J., dissent.)
    
      Appeal from, judgment of the supreme court, general'term, first •department, reversing judgment entered on report of referee, unless plaintiff stipulate to reduce recovery.
    
      Eugene S. Ives, for pl’ff; W. W. Westervelt, for deft
    
      
       Reversing 40 St. Rep., 776.
    
   Gray, J.

This proceeding was for the determination of a •claim, filed by the plaintiff with the executors of the last will of Patrick H. Kennedy, deceased, for. services rendered by plaintiff’s wife to the testator, in the capacity of a nurse, during a certain period of time previous to his death. It being referred under the .statute, by agreement, the referee reported in favor of the claimant, allowing him for the value of these services at a rate per week based upon evidence as to what such services were usually worth. Upon appeal from an order of the special term confirming the referee’s report and from the judgment entered by the plaintiff, the general term ordered a deduction from the amount .allowed and affirmed the judgment as so modified. Both parties appealed to this court, the plaintiff because of the deduction by the general term ; the defendant, because of the affirmance by the general term of the judgment.

Upon the defendant’s appeal it is argued, with respect to the claim, that it was one which belonged to the wife, by force of the statutes of this state which' regulate the status and the rights •of married women, and was not one which could have accrued to the plaintiff, under the circumstances disclosed. But as to this contention we agree with the general term that, from the evidence, it is clear that the wife of the plaintiff was acting not for herself, but in the service of and subordinate to her husband. 'The deceased rented a room in the plaintiff’s house and boarded in his restaurant. The plaintiff’s wife, while attending to the household duties and helping her husband in his business and being engaged in no occupation separate from that devolving upon her as a wife, also attended upon' the deceased and cared for him as • a nurse. Such services were rendered with the knowledge and assent of the husband. Moneys which were expended in and about her attendance upon the testator were pro•cured from the husband. Finally, she made no personal claim to be compensated for what she had done. These facts and circumstances sufficiently established the right of the husband to prefer- and to maintain the claim. The legislation in this state upon the subject of the rights of .married women has only resulted in abrogating their common law status to the extent set forth in the various statutes. They have not by express provision, nor have they by implication, deprived the husband of his common law right to avail himself of a profit or benefit from her services. It is true she may engage in a separate occupation and labor upon Tier own account and retain to herself the earnings therefrom; -but that was not the case here; nor is there the slightest evidence of "her having elected to labor upon her own account, or to consider herself entitled to the payment for -her services.

As, therefore, the husband did not derive his right to recover against the estate of the deceased, for the compensation due for the services rendered by his wife, through or under her, but was-asserting his common law right, the objection by the defendant to the reception of the testimony of the wife, as to the circumstances of her engagement aa nurse, under § 829 of the Code oí / Civil Procedure, was untenable.

This brings us to the consideration of the plaintiff’s appeal from the deduction by the general term from the amount allowed by the referee. The modification by the general term was stated in the order and judgment to have been made upon questions of law and fact, and we are thus authorized to examine into the evidence given upon the trial in order to discover whether there-were any facts which would warrant the appellate court in so-modifying the judgment below. The result of that examination does not satisfy us that there was evidence of any agreement with, the testator which would conclude plaintiff and prevent his recovering as upon a quantum meruit The facts are few and are-furnished by the testimony of the wife. When the testator became a tenant of the plaintiffs, in -1877, he was suffering from, consumption. Being attacked by a hemorrhage, he called in Mrs, Porter and asked her to take care of him. To quote from her testimony: “ He. asked me himself to nurse him. He told me to-take care of him and that he would give me $5,000 in his will; he said he would give me $5,000 in his will at this time, right in the beginning, the first day.” Again she testified: “I have testified that Mr. Kennedy said he would pay me in his will; he said it six or eight times; I was satisfied to wait until he died and I never thought he would do anything wrong, for he was a gentleman in every way.”

Upon that evidence, for that was practically all which could: be considered to bear upon any arrangement with testator, the: general term deemed the services to have been rendered under an. agreement on the testator’s part and that the sum of $5,000 measured his liability, or that of the estate. The evidence shows that, from December 20, 1877, when the testator came to live with plaintiff, to the time of his death, on ¡November 5, 1888, nearly eleven years, plaintiff’s wife, constantly attended upon him. During the lapse of that period all that appears about any compensation is that from six to ten times the testator said he would pay her, or remember her in his will.

The particular sum of $5,000 seems, only to have been mentioned in the beginning. When his will was read there appeared only a provision for a legacy to her of $500. This the executor paid over to her and, upon the present trial, he opposed the claim, principally, on the ground that plaintiff’s wife, and not plaintiff, was the proper party to maintain it. ¡N"either party seems to have-considered that there was anything which amounted to an agreement limiting the amount of compensation. The plaintiff supported his claim by evidence as to the value of the services rendered ; while the defendant denied his legal right to recover anything, and insisted that his wife had been fully paid by the legacy of $500. The difficulty in the way of sustaining the modification by the general term upon the facts, is in the very absence of facts to support the theory, expressed in their opinion, of an agreement •or obligation limiting a recovery; and there "is actually no other basis for their modification, if we disregard that theory.

The general facts in evidence, upon which the referee based his ■finding, are conflicting and would not warrant either an arbitrary ■deduction by the appellate court, or some other determination by it as to what amount the plaintiff should recover. This was not a case .where distinct or separate items went to make up the allowance, and where the court, in its judgment, might reject some of the items for error of fact or of law, and order a modification •accordingly. There was but the one claim for a continuous service as nurse.' As the referee was supported by the evidence in his finding as. to. its worth, it should not be disturbed arbitrarily. Within the reasoning of the opinion in Whitehead v. Kennedy, 69 N. Y., 462, 468, I think the general term had not the power to determine upon conflicting evidence what amount the plaintiff should recover in this case. Mor has its theory any actual support in the facts. When testator - first called in the services of Sirs. Porter, as a nurse, he said he would give her $5,000 in his will; but upon the subsequent occasions he only said he would remember her in his will. So he did; but not in the sum which "he had first mentioned. This would seem rather to negative any inference of an agreement or understanding as to compensation.

It- may be assumed that Mrs. Porter expected to be well remembered by testator in his will; but that would not conclude the plaintiff -from, claiming the reasonable worth of her services. Mot only was he not a party to any agreement fixing the amount to be paid for the services of his wife, but, in fact, there was no .agreement which the evidence discloses. Mor is the testator's promise to remember her in his will inconsistent with the right of the husband to claim for what her services were worth- The fact ■of the mention by the testator, in his first interview with Mrs. Porter, of an intention to give her $5,000 in his will, is not such .a fact in relation to evidence of value as to authorize this- reductian. He may have spoken in good faith, while Mrs. Porter listened, and believed, and probably .hoped; but where are the ■elements of an agreement'; or how does the promise of a testamentary gift, not performed, operate to -restrict the plaintiff’s right to recover on the value of his wife’s services ? And how •can such a promise tend to prove, or affect, the reasonable value of the services as thereafter rendered? I do not think that any inference can be drawn from the fact of a promised gift by will, except that of a purpose to enlist and to retain the services of the wife and the attentions of the family. -If any other inference ■could be drawn from the facts, upon which the general term might be supported in their modification of the judgment, I should ■strongly incline to it: for I am conscious that the claim is open to very severe criticism. Brought against the estate of the deceased ; allowed to run for nearly eleven years; supported by the :sole testimony of the plaintiiff’s wife, • with no admission of any payments meanwhile; these'are facts which might well create an atmosphere of grave doubt about the honesty of the claim. But these were considerations for the trial court and not such as may be acted upon by us.

The order and judgment of the general term should be reversed and the judgment entered upon the referee’s report shogld be affirmed, with costs in this court.

Finch, Peckham and Maynard, JJ., concur. Earl, Oh. J., and O’Brien, J., dissent, and are for affirmance. Andrews, J., not voting.  