#### Matter of the Judicial Settlement of the Account of the Proceedings of Bridget Lannon, as Administratrix of the Goods, Chattels and Credits of Barbara Gallagher, Deceased.

(Surrogate’s Court, New York County,

December, 1911.)

Executors and administrators — Debts and liabilities of the estate — Enforcement of claims — Evidence — Claims by relatives and persons in confidential relations; Nursing and burial services — Value.

The presumption that board or services furnished or rendered by one member of a family to another member of the same family *67are intended to be gratuitous is not applicable to board and services furnished by sisters to each other, where the sisters have long since ceased to live together, have no homes of their own, are dependent upon their labor for their livelihood and are brought together by the stress of the illness of one of them that ends in her death.

■ And where" the services of one of the surviving sisters to the decedent were rendered in nursing her during her illness, á service for which she, had .no previous training, such" services will not, in the absence of any satisfactory evidence of their value, be estimated- above the wages which she usually receives in her customary vocation of a cook.

■ Pbooeediiíg for the judicial settlement of the accounts of an administratrix.

Robert A. B. Dayton, for objectors.

Gustav Goodman, for administratrix.

Fowler, S.

Objections -on the part of the mother and the half brothers of the intestate have been'filed to the account of the administratrix. The items objected "to are principally two: (1) A payment of $136 by the administratrix for board of the intestate claimed to have' been furnished by the intestate’s sister Mary, Ressler to intestate during her last illness. Mary Ressler, Barbara Gallagher, the intestate,- and the administratrix were three sisters. (2) A payment of $225 to herself by the administratrix for her services as nurse, rendered to the deceased sister during the last illness of such intestate, is also the -subject of a separate objection.

It appears that the intestate and her two sisters when in health lived apart in Few York the ordinary lives of hard working people. The objecting relatives live in Ireland. That the three sisters at the time of the death of intestate were all living together for convenience in an exigency did not constitute them, I think, members of one *“*family,” as the term “ family ” is understood in law. The intestate came to die in the temporary home of Mary Ressler, who was then employed as a caretaker of the residence of a property holder in this city. They occupied the basement -of this residence. The sister claiming as nurse was by occupation a cook, and she left her employment to nurse the intes*68tate in the place of abode indicated, during the illness which had a fatal termination. The estate of intestate in the aggregate is very small, and these claims, if allowed in full, will exhaust it. Such are the relevant facts for the application of principles of law to this matter.

I shall consider first the payment by the administratrix to the sister for board furnished to intest-ate. The proof of a payment by the intestate herself of forty dollars to the caretaker on account of board furnished by the latter is important, as it tends to establish a contract relation and to rebut presumptions of law otherwise applicable to this claim. This proof -was furnished by a third and disinterested person. In no other way was there any proof of an express contract by intestate to pay board, and no exact proof of the value of the hoard actually furnished was presented to me. Any adjudication on my part is, therefore, full of technical 'difficulties. Is the claim for board to be based oP an express contract, or is it to be based on an implied contract? To raise an implication of contract in this matter is the more difficult problem of law. An interesting discussion of the legal distinction between the two classes of contractual obligations, express and implied, may be seen in People ex rel. Dusenbury v. Speir, 77 N. Y. 150, 151, where it is said, “ that implied or constructive contracts are similar to the constructive trusts of courts of equity, and in fact are not contracts at all.” .But a full consideration of the subtle distinction only, indicated in that case would lead us into one of the largest fields of disputation and scientific discussion in the whole region óf the common law of contract, and I shall avoid entering-on it at this time for the reasons now given.

I am inclined to think that my solution of the claim for board must rest, if sustainable at all, on tire theory of an express contract. The counsel for the objectors very properly presses upon me an indisputable proposition of law, that there is no presumption, in the absence of an express contract, between members of the same family, that one will pay the other for board or services' rendered. Williams v. Hutchinson, 3 N. Y. 312, 316; Bowen v. Bowen, 2 Bradf. 336; Keller v. Stuck, 4 Redf; 294. This proposition will *69be assumed, with some limitations, to be accurate. It is founded on the organization of the family where mutual and reciprocal services are assumed to be gratuitous or in the common interest of the family institution. But in this matter. I am inclined to think that an actual contract relation was established, so that the well-known principle just referred to is not precisely applicable to the facts presented to me.

It does not seem to me that the very proper legal presumption — that services or board furnished by one member of a common family to another are to be taken as voluntary or gratuitous — ought to apply in the case of these poor women now before me. They had long ceased to constitute one family in law. Each had gone out to gain her separate existence. Each was independent of the other when in health, and they had simply come together again by stress of the sad circumstances in which they found themselves for the time being. But as the caretaker presumably paid no rent, and the food of a sick and dying sister could not have been very costly, I am inclined to think that the claim for board furnished intestate is too great. I will find that it was worth no more than half the amount claimed, that is to say, $68 instead of $136. This will leave something for the mother and the kindred in Ireland.

I come next to the claim of the administratrix herself for $225, the alleged value of her services rendered as nurse to the intestate. Before this claim can be allowed as a payment, its validity must be established by legal proof (Code Civ. Pro., § 2731), and not by the testimony of the administratrix herself, as she is incompetent for that purpose by reason of interest. Code Civ.. Pro., § 829. The only legal evidence of an express contract by the intestate to pay the administratrix for her services rendered as a nurse was furnished-by Mary Eessler, the other sister, who was probably not incompetent for this purpose, or, if she was, no objection was interposed. I think her testimony in any event was against her interest, and it tends ito show that the intestate was to pay the administratrix something for the nursing, and, therefore, that the ordinary presumption, that *70the service was voluntary and gratuitous, was sufficiently rebutted to allow me to find a contractual employment to nurse. If so, the only remaining question concerns the value of the nursing services. The administratrix was not a professional nurse, and I shall, therefore, ignore the testimony of the physician who testified to the effect that the value of her services was fifteen dollars a week. The surrogate himself is quite as competent from the evidence furnished to determine the value of the services of one who is not a trained or professional nurse, as is the physician. Before the nursing began, as the evidence discloses, the administratrix was employed as cook at thirty dollars a month. ■During the fifteen weeks of nursing, the administratrix could have gained, therefore, as cook one hundred and forty-two dollars and fifty cents. This sum she forfeited by her employment as nurse. This then is the true measure of the value of her services in this matter. I have no doubt, from the highly respectable demeanor of this elderly administratrix on the witness, stand, that her services as an untrained nurse were faithful and good of their kind, and certainly the intestate was deeply sensible of this fact, as the testimony discloses. I doubt if the services as nurse exceeded in value that of the administratrix’s other services in her regular -capacity in which -she was trained. I, therefore, find that the administratrix is justly entitled to receive one hundred and forty-two dollars a-nd fifty cents for her services rendered as nurse to the intestate.' I am sensible that this conclusion may seem somewhat informal, but I am satisfied . that I have not strayed far from the true. legal principles. It is, in any event, the only conclusion that the pleadings as framed, and the testimony as adduced, permit .me to. reach. The" other objections to the account T do not -sustain. Do costs will be allowed, -so as to enable the administratrix to remit the maximum sum possible home to the Irish relations of the intestate. I trust that this conclusion will seem just' to all concerned, as further litigation or contention among these poor people would be deplorable in the extreme.

Decreed accordingly.