In re the Judicial Settlement of the Accounts of Sprague

(dissenting). This is an appeal from the decree of the surrogate of Putnam county upon the final settlement of the accounts of the administration of Freeman Sprague, deceased.

The appeal was taken by Gilbert R. Sprague, one of the administrators, and the objection lodged against the decree has reference to the objection of the claim of the appellant against the estate for his personal services rendered and performed in the lifetime of the deceased, who was the father of the claimant.

The proof introduced before the surrogate in substantiation of the claims, establishes for it a substantial foundation.

The performance of labor and the rendition of services by the claimant upon the farm of the deceased for many years prior to his death was fully established by proof which remained without contradiction, and it was also shown by abundant testimony that the claimant assumed the personal care of his father during his last illness which continued through several years and watched by him at night in the performance of necessary and unpleasant duties.

There was also proof sufficient to show an expectation and an undertaking on the part of the deceased to compensate the claimant for the services he so performed.

The opposition to the claim is quite inapprehensible. It seems to be founded upon the thrift of the claimant, and upon the fact that in some unexplained manner he has put money in his purse and accumulated a little money.

And so without proof of the misappropriation of any of his father’s money or property, and in the face of testimony tending to show the appropriation of all the farm productions to the expenses incident to its management and the support of the family, it seems to have been assumed that the claimant, while engaged in the management of his father’s farm, had misappropriated and retained sufficient money and property to pay him for all the services he performed.

AVe think the assumption was erroneous because it is baseless.

The testimony contained in the record presented to us on this appeal is sufficient to establish a claim in favor of the appellant against the estate, and required the surrogate to find the value of the services, and make an allowance to the claimant accordingly.

The decree should be reversed and the case should be remitted to the surrogate for further action in accordance with the views expressed in this opinion, costs to appellant to abide the event and be paid from the estate.

The part of the claim which is before 1876 is barred by the statute of limitations. Assuming an employment which is between members of a family would justify a recovery, there is no implication that the statute of limitations fails to operate from year to year. (Davis v. Cortland, adm’r, 16 N. Y., 255).

The part of the claim subsequent to 1976 is without merit or foundation. *903The deceased owned a large farm, well stocked, from 1876 to the time of his death. He was weak in body and mind, and for the last four years of his life was entirely incompetent. The claimant had the entire management, received and disbursed all tne proceeds of tne farm, and he furnishes no account. He cannot even tell the amount of the proceeds. Connot tell the amount of grass or cattle sold, or of the milk sold. Under the state of the evidence the claim was properly rejected.

Judgment affirmed, with costs.

Pratt, J., concurs.