Opinion
February 20, 1962
Present — Bergan, P.J., Coon, Gibson, Reynolds and Taylor, JJ.
Appeal from an order of the Surrogate's Court, Tioga County, upon a proceeding to judicially settle the account of appellant, allowing respondent the sum of $1,800 for room and board, laundry and personal services rendered to decedent during his lifetime. Decedent, a former farm laborer, resided in respondent's home in Owego from October 15, 1952 until his death on March 4, 1958 except for a few apparently short intervals. Previously he had been "let out" of his brother's home and was compelled to leave the home of a Mrs. Wake with whom he resided in the early Fall of 1952. His residence with respondent came about as a result of a meeting with respondent's daughter who, at his request, arranged for him to live at respondent's home for a few weeks. This temporary visit soon developed into a permanent arrangement. The evidence indicates that during the period of decedent's residency respondent provided him with a comfortable private room and, except for an interval of four months during the Winter of 1957, also provided his meals and washed and ironed his clothing. There is conflicting testimony as to whether decedent ever made any monetary advances to respondent and if so the extent thereof, but it definitely appears that respondent never demanded any payment from decedent during his lifetime. It also appears that decedent during his residence performed such tasks as tending the coal furnace, caring for the lawn, shoveling snow and other odd jobs as would normally be performed by the man of the house. Appellant contends that the instant record does not support the finding of the trial court that respondent is entitled to recovery in. quantum meruit. We cannot agree. The performance of the services by the respondent for which she now seeks recompense raised the presumption that the fair and reasonable value thereof would be paid ( Matter of Hughes, 229 App. Div. 614; appeal dismissed 254 N.Y. 597; Matter of Mason, 134 Misc. 902). Appellant asserts that this presumption is here rebutted by the fact that reciprocal services or benefits were rendered ( Matter of Mason, supra), the close relationship between the parties ( Matter of Mulderig, 196 Misc. 915) and the fact that no demand was made on decedent for payment during his lifetime ( Matter of Long, 144 Misc. 181). As to the first contention, we do not find that the trial court was compelled to hold that the services rendered by respondent were given as a quid pro quo in exchange for services rendered by decedent. A comparison of the services rendered by each party negates such an inference. It would appear rather that decedent of his own volition took upon himself some of those tasks that the man of the house would normally assume. As to the claim that decedent gave respondent substantial sums of money during his lifetime, we are not disposed, on the basis of the present record, to disturb the determination of this question by the trial court who viewed the witnesses and heard their testimony. As to the contention that the close relationship between decedent and respondent and her family rebuts the presumption, it is sufficient to point out that the actual relationship between decedent and respondent was that decedent was respondent's deceased husband's uncle and that it was decedent who requested he be allowed to reside at respondent's home. Admittedly, a closeness developed between respondent and her family and decedent over the almost five and one half years decedent resided at respondent's home. The development of such a harmonious relationship would be hoped for rather than unexpected. There is absolutely no evidence that this "close relationship" existed prior to the time decedent began residing with respondent. The fact that respondent never demanded payment from decedent during his lifetime proves more vexing. The failure to make such a demand is evidence negating the existence of an implied contract to pay for the services rendered ( Matter of Zimmer, 77 N.Y.S.2d 872, affd. 274 App. Div. 1024, appeal dismissed 299 N.Y. 677). It is not, however, controlling in and by itself ( Matter of Hughes, supra). The respondent as in all civil cases must only prove her claim by a fair preponderance of the evidence, even though that evidence should be clear and convincing ( Matter of Wood, 207 App. Div. 41, 43). Justifiably, however, claims made after years have passed from the rendition of the services and after "death renders contradiction of the decedent impossible" are viewed with great suspicion ( Matter of Long, supra, p. 186). The courts have a duty to protect a decedent's estate from the pillages of fortune seekers. Viewing all of the evidence here, however, including the relationship between the parties, the facts surrounding the commencement of decedent's residence with respondent, the services and advantages rendered and what we can glean from the record concerning the personalities of the parties involved, we cannot say that the court below was not justified in allowing respondent's claim. Appellant further contends that respondent did not adequately prove the extent and value of the services rendered to decedent and thus her claim must fail. In cases of this nature precise evaluations are extremely difficult and in each case the exercise of discretion and common sense by the trial court must be resorted to to determine such questions ( Matter of Taylor, 206 Misc. 69). We do not find that the trial court's evaluation of the services here rendered was excessive or improper. Order unanimously affirmed, with costs to respondent.