#### Matter of the Estate of Mary Delaney, Deceased.

(Surrogate’s Court, Cattaraugus County,

May, 1899.)

Decedents’ estates — Contributions to the family support presumed gratuitous as between son and deceased mother.

Where the proof in regard to an unmarried son’s claim, against his mother’s estate is that, while living during several years with her and the other children in the family relation, he used a considerable portion of his earnings for the. general support, there is no presumption that his contributions were to be regarded as . debts to be repaid him by his mother andj in the absence of satisfactory proof of her express promise to that effect he cannot recover of her estate.

Distblbution of proceeds of sale of real estate for payment of debts.

C. S. Dwinnells, for claimant.

J. R. *&*Dana Jewell, for administratrix. •

Davie, S.

A decree was heretofore made directing the sale of the real estate of decedent for payment of her debts; the son, Thomas. Delaney,. did not "appear in .such proceedings, although served with citation, until the .day fixed for the distribution of the proceeds of such sale; he then appeared and filed a claim against., the estate for the sum of $2j800 for .money. alleged to have been by him loaned to and advanced for the use .and benefit of decedent. The material facts, "as disclosed by the evidence; áré, as follows:

*399Decedent died intestate, October 9, 1896, possessing no personal estate, except a small quantity of household furniture, but seized of real estate, consisting of the house and lot, in the city of Olean, where she resided, of the value of $2,000, and a small and c mparatively unproductive farm worth $500.. The husband of decedent died several years prior to her death, and from the date of his death the family consisted of the widow, two sons, William and Thomas, the' claimant, a daughter Maggie, and a minor grandson Lewie, whose father, Michael Delaney, died in 1895 and seems to be largely maintained from the earnings of. the sons. The claimant is unmarried, thirty-four years of age, a mason by trade, and has always made his home with the decedent. It is undoubtedly true that when employed the claimant used a considerable portion of his earnings in the support and maintenance of the family. Aside from the proof of specific payments to decedent by claimant, in various sums, aggregating about $200, the claimant rests his case upon proof inferential in its character as to the extent of the claimant’s employment, his wages, his good habits, and declarations on part of the decedent expressive of gratitude and appreciation for what ■ claimant had done for her, and, generally, to the effect that she depended largely on this son for her support. There is a total lack of proof of any express agreement on part of the decedent to repay these moneys to the claimant. The question then to be determined is • as to whether the law will imply such promise and obligation from the circumstances surrounding the transaction. There is nothing in the evidence to relieve the claim from the well-recognized principles that where demands are withheld during the lifetime of an alleged debtor, and sought to be enforced against his estate, they should be carefully scrutinized and allowed only on clear and satisfactory proof. Kearney v. McKeon, 85 N. Y. 139.

The conditions under which these ¡moneys were advanced by the claimant throw grave doubts on his right to recover therefor. During the entire period covered by his account he was a member of decedent’s family, provided with board, lodging and the advantages of a home with her. Where the relations existing between parties are such that it is evident that the acts performed were mere matters of gratuitous kindness and affection in consequence of reciprocal obligations and advantages, without expectation of pecuniary compensation, the law will not imply a promise to pay. A person cannot perform services, intending them to be gratuitous *400and. with .a tacit understanding that no pecuniary charge .is to be made, and afterwards recover on a *quantum .meruit*for the same.. Moore v. Moore, 3 Abb. Ct. App. Dec. 312; Matter of Stewart, 21 Misc. Rep. 412. ,

The reasons and necessities for this rule are equally applicable to money advanced as to services rendered. But there are other insurmountable objections to a recovery in this case.

Proof of the mere fact of payment of money by one person to another is not sufficient to maintain an action therefor. Where one man delivers a sum of money to another, if there is nothing else to explain the transaction, the legal presumption always is that the .money belonged to the one who received it, and not that he thereby became the debtor of the other. Bogert v. Morse, 1 N. Y. 377; Manchester v. Braedner, 107 N. Y. 346; Welch v. Seaborn, 1 Stark, 385. ; ' .

It Was conceded on the trial, and such concession has become a part of the record, that the board of the claimant at the home of the decedent during the period covered by the ..account was worth $3 a week, amounting in ad to something over a thousand dollars.-. With this admission in view, the only presumption arising from the fact of the various payments established by the evidence, is that such-moneys were paid on account of .the. board- and accommodations, which claimant .concededly had received from the decedent. . The claimant proves various statements made by the decedent, .and relies upon such proof as being sufficient to warrant -a finding of an express promise on the part of the decedent to repay these moneys. The witness Quinlivan testified that decedent told him how good her son-. Thomas' was, and that he was her main support, and that she did not know what she would do without him. The witness Mahar testified that he had had- various conversations' with the decedent, in which she. had said to him that Tom was always good to her and gave her .his wages; that she received but little assistance from her son William,, and that she did not know how she could get along if it were- not for the claimant; that he gave her all his wages,. except what he needed for clothes, and cigars, These and the various other declarations claimed to have been made by the decedent are much more con-' sistent with the theory, that decedent understood that the claimant was giving her this money on account of their relations, and because of what she hád doné for him, and to help maintain a home, the advantages of which he. was sharing, rather than that she un*401derstood them to be loans which she or her estate would be obliged to repay. From a careful and thorough review of all the evidence in the case, I am satisfied that claimant has no legal demand against the estate. Consequently, the claim filed by him will be disallowed by the decree to be entered herein.

Decreed accordingly.