In re Judicial Settlement of Account of Wescott

Matilda R. Wescott is the sister of the deceased, and both resided with their father until six years prior to the death of Adaline, when the father died, and thereafter the sisters lived together. The testimony satisfactorily establishes that Adaline was an invalid, suffering from consumption, from the effects of which she died. During the six years prior to Adaline’s death Matilda cared for and nursed her. It is evident that,' as Adaline slowly approached her dissolution, the care and nursing of her became more burdensome, and the services rendered more constant and exacting. There is no dispute .but that the service, care and nursing were rendered with fidelity covering the whole period. Adaline recognized the obligation to Matilda, and the evidence is convincing that she agreed to compensate her therefor to the value of her estate.

Upon the proof, if the allowance had been made to Matilda, based upon quantum me7'uit, it would not have been excessive to have allowed her therefor the full amount left by Adaline. The learned surrogate, however, based his decision upon the existence of a contract between Adaline and her sister, whereby,.in consideration of the care and nursing by Matilda, Adaline agreed to compensate her with all the property of which she should die possessed. The conclusion of the learned surrogate has support in the testimony. It appeared that each sister intended to make a will in favor of the other. These wills were prepared, but, by mistake, one became substituted for the other. Adaline executed Matilda’s will, and Matilda executed Adaline’s. This mistake was not discovered until after the death of Adaline. It Avas testified by Mr. Anthony, Avho prepared these wills, that his recollection was that Adaline stated *241that if she outlived Matilda, she would need Matilda’s property for her support, and, if Matilda outlived her, she would deserve Ada-line’s share of the property for the care she had taken and would take of Adaline, " Mrs. Stevens, a half sister, testified that Adaline told her “ that they had agreed that her sister Matilda was to take care of her as long as she lived, and she was to have whatever money of hers that was left for pay for taking care of her. She told me that three or four times. I can’t give the dates, but I think it was in June before her death.” The witness further testified that Adaline told her about the will, and also of the agreement to pay for the care and nursing. Lizzie Hoyt, an aunt, testified that Adaline stated to her, “ when I am done with what I have, I want my estate to go to Tillie for what she is doing for me. * * * I have agreed to give. Tillie all of my estate for the care she has taken of me, and I haven’t half enough to pay her for that.” While it is, doubtless, true that the evidence is susceptible of a construction of intent to give an estate to Matilda, and that such intent failed in execution, it is equally true that it is also sufficient upon which to find an agreement to compensate for service quite independent of an intent to give the estate. Such contract is valid and capable of enforcement. (Robinson v. Raynor, 28 N. Y. 494; Boughton v. Flint, 74 id. 476.) Neither does it fail where the compensation was to be made through the medium of a will and none was ever executed. (Shakespeare v. Markham, 10 Hun, 311; Parsell v. Stryker, 41 N. Y. 480.) A conveyance of the property in direct contravention of the agreement will not suffice to defeat the right, where the case clearly discloses the existence of an agreement tó compensate, and service is rendered pursuant thereto. (Erwin v. Erwin, 44 N. Y. St. Repr. 6; S. C., 139 N. Y. 616.)

In the present case, the contract being established, the claimant became entitled- to an allowance of the agreed compensation. This, is accomplished by the decree, which should be affirmed, with costs' to the respondent.

All concurred.

Decree of the surrogate affirmed, with costs to the respondent,