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spect is put beyond dispute by the letters of Myers, written mainly by his then secretary and agent, Yoe. Under date of July 6, 1870, the latter writes that Myers is sick; and adds: "He wishes you to look after his affairs generally, until he is able to return." Under date of July 14, 1870, Yoe writes again that Myers is still sick, and "he desires you to look after his matters; and that, if you desire any one to counsel in his affairs, you will confer with T. B. Fitch, Esq., and, if necessary, come to Syracuse to see him." Then follow 34 letters, running down to the middle of October, when Myers went to New York, where he died a few weeks later. The burden of Myers' letters is the detail of his business to be attended to. Much of it concerned the sale of the Trenton Arms Company to De Muir. While it is true that Johnson and Myers were joint owners of that property, the title stood in the name of Myers, who sold the whole of it to De Muir as early as December, 1869, and from that time on owed Johnson his proportion of the purchase price. Further subjects are the collection of mortgages, the discharge of judgments, the sale of houses, and the difficulty with Randall and Willianis, in which Johnson seems to have had no personal interest. Beyond any question, the statement of Mrs. Johnson was true.

She further testified to an arrangement made with Fitch, after Myers' death, for the rendition of services to the estate. How entirely true that is becomes evident from the multitude of Fitch's letters calling upon Johnson, in every conceivable shape, for information, advice, and service; from the account of moneys received by Johnson, and paid over by him, running to about $100,000; and from numerous vouchers, in which the estate is found paying Johnson for his expenses, and returning to him moneys advanced. Mrs. Johnson further said that, from 1864, her husband was more or less occupied with the affairs of Myers and his estate. This also was undeniably true. The defendant drew from her, on cross-examination, the fact that, in 1864, while they lived in Trenton, Johnson came to Syracuse every week, during six weeks, at the request of Myers, and that she knew it was on Myers' individual business; that he went to Brooklyn, attended to litigations, and consulted with lawyers. Many letters during this period tend to corroborate her statements. But what is quite as conclusive as a detailed examination of the services in the defendant's own request to find, marked "No. 6," and couched in this language: "That said William Johnson rendered some services for said Austin Myers during his life-time; that the services so rendered by him were reasonably worth the sum of $3,600, and no more; and that said item is a proper charge on this accounting, in favor of the estate of said Johnson." In the face of this admission, it requires some nerve to insist that Johnson's services rendered all related to the joint property.

Mrs. Johnson, swearing to this knowledge, shown to be correct, and with abundant opportunity to know, and that the best of any living person, was then asked what proportion of Johnson's time was devoted to Myers' business. To this it was objected that the witness was incompetent to give an opinion, and that it appeared that Johnson and Myers were partners. The objection was overruled, and an objection taken. The witness answered: "One-half, from 1864 to the time of Johnson's death." The objection was not sound. The question called for a fact within the witness' knowledge, and not for an opinion. If a person, familiar with the character of Myers' business, had been asked how much of one man's time it would have taken to conduct or transact it, that would have called for an opinion; but if asked how much time it did take, no opinion would be sought, but a fact founded upon knowledge. That was the character of the question put to Mrs. Johnson. A fact was asked for of which she had some knowledge, and which she could answer to the extent of that knowledge.

How gravely inconsistent it would be for us to hold the admission of this question error, is apparent from our own ruling in a much more debatable

case. Hallahan v. New York, L. E. & W. R. R., 102 N. Y. 195; S. C. 6 N. E. Rep. 287. There the witness who saw the passenger answered, "I should judge" that deceased's elbow was not out of the window, from the position that he held in the car. A motion to strike out the answer was denied, on the ground that, if the answer seemed an opinion, it was, in effect, not one, but, at least, was admissible as an opinion founded upon knowledge. Estimates of time and value thus founded are always admissible and no objection was taken in this case that Mrs. Johnson had not sufficient knowledge. She swore that she had, the opportunity was certainly hers, and the facts corroborate and support the truth of her answer. Bearing upon them, as we have said, was a voluminous correspondence read in evidence, the details of the defendant's own account against Johnson, which show a large mass of business done by him for Myers and his estate, resulting in the receipt and payment of very considerable sums of money; and the evidence of other witnesses as to services rendered, and the value of the same. The finding of the referee upon the subject was not unreasonable, or outside of the inferences which were possible from the proof.

An exception was taken to a question put to Jewett, which was this: "Have you ever been with Col. Johnson when he was professedly in Capt. Myers' business?" The ground of the objection was that the question called for the declarations of Johnson in his own favor. That was not the object or effect of the evidence. The purpose was not to prove by Johnson's statements that he was at work for Myers, but to show that the witness was acquainted with the kind of business in which Johnson was engaged, and which, by other evidence, it was claimed to have been shown was that of Myers, with a view of obtaining from the witness his estimate of the value of Johnson's services. This is made quite apparent by what immediately preceded the objection. Jewett had said that he saw Johnson engaged in work which the latter represented to be that of Myers. A motion was made to strike out Johnson's declarations, in the absence of Myers', and the motion was granted. The referee, therefore, certainly did not understand the word "professedly," used in the question, as calling for a class of evidence just held by him to be inadmissible, and must have understood the inquiry as merely preliminary to the proof of value afterwards given. It may be added that the answer was harmless. It showed the intestate ostensibly engaged in services for Myers, but not that he was so engaged, or what the services were. The referee quite certainly understood that those facts were not proved by Jewett.

The plaintiff was permitted to show what the value of the services of such a man as Col. Johnson was, and to this there was an exception. It is now argued that his character and ability had nothing to do with the value of the services. We think it had much. The duty to be done required the best of judgment, a skill and ability beyond the average, and was largely of a confidential character. It had no common and general market value. The work was not merely ministerial, or a service which anybody could render. The business was varied and complicated, and in many directions responsible, and the man chosen to perform it, by reason of his capacity and ability, had a right to be paid upon the standard of the capacity which entered into the work, and formed the principal and essential value of the services.

The remaining questions argued respect the counter-claims of the defendant which were disallowed upon the trial. In the main, they depended upon pure questions of fact, involving the credibility of witnesses, and the drift and effect of items in the books of account. They were argued exhaustively before us, leaving upon our minds a conviction, which a careful subsequent examination has strengthened, that they furnish no ground for a reversal of the judgments. The reasons given by the referee and the general term substantially cover the ground, and meet our approval, and a renewed discussion of them is neither necessary nor suitable.


Each of the two judgments should be affirmed,—that against the defendant as executrix without costs; and that against her as an individual with costs.

MILLER, EARL, and DANFORTH, JJ., concur. PALLO and ANDREWS, JJ., dissent.

(103 N. Y. 666)

RUGER, C. J., and RA

JOHNSON, Adm'x, etc., v. MYERS, Ex'x, etc.

(Court of Appeals of New York. November 23, 1886.)


Where, in an action against an executrix, an order granting costs and additional allowance is resisted on the ground that the claim was not presented to the executrix for payment, the fact that the claim, duly verified, was exhibited to the executrix's authorized agent, in the manner required by law, (3 Rev. St. N. Y. [5th Ed.] p. 175, 39, 40,) justifies a finding that plaintiff's claim was properly presented. 2. SAME-APPEAL-CONCLUSIONS OF TRIAL COURT.

Though the New York court of appeals follows the conclusions of the court below unless for some obvious and sufficient reason, it appearing in this case that payment was not unreasonably resisted or refused, the order granting costs and an additional allowance will be refused.

Wm. G. Tracy, for appellant, Johnson, Adm'x, etc. Chas. A. Hawley, for respondent, Myers, Ex'x, etc.

FINCH, J. An order was made in this case granting costs to the plaintiff and an additional allowance. It is resisted, upon this appeal, on the ground that the plaintiff's demand was not presented to the executrix for payment 'before the commencement of the action, and that such payment was not unreasonably resisted or refused. Both questions turn upon disputed facts, as to which it is the general rule of this court to follow the conclusions of the courts below, unless for some very obvious and sufficient reasons. Field V. Field, 77 N. Y. 294. The statute (3 Rev. St. [5th Ed.] p. 175, §§ 39, 40) authorizes publication of a notice to creditors, "requiring all persons having claims against the deceased to exhibit the same, with the vouchers thereof, to such executor or administrator," etc., and allows the latter, upon such presentation, to require production of vouchers and an affidavit of the claim


The proofs on the part of the plaintiff show that her claims, with the books and vouchers on which they rested, were fully "exhibited" to the authorized agent of the executrix before the commencement of the action, and were examined and rejected by the assertion of counter-claims sufficient to extinguish them, and all ultimate liability denied. This fact is no further disputed than by an affidavit of the defendant's attorney that no "formal claim" was ever made, though he admits "informal negotiations for a settlement." But while the courts below were justified in holding that the plaintiff's claim was duly exhibited and properly presented, the examinations we have made of the facts in controversy very strongly impress us with the conviction that the defense of this action was reasonable and proper; and, while the defendant estate was unsuccessful in the end, there was abundant reason, in the complicated nature of the accounts, in the great amount of business transacted, and in the supposed and actual existence of grave counter-claims, to justify the defense actually made, and prevent us from holding it to have been unreasonable. Judgment was demanded for more than $60,000, with a large amount of interest. Judgment was rendered for a sum very materially less, and still further reduced by a deduction of the general term of more than $10,000. We discover no trace of bad faith in the defense interposed, but much to justify the inquiry and examination which it compelled.

For this reason we think costs should not have been awarded, and we therefore reverse the order appealed from.

(All concur.)

(103 N. Y. 470)


(Court of Appeals of New York. November 23, 1886.)


An exception "to a surrogate's decree, and each and every part thereof," is a nullity, since it indicates no specific error; the purpose of section 2545, Code Civil Proc. N. Y., being to assimilate the practice on appeals from surrogates to that regulating appeals from courts or referees.

2. SAME.

A judgment of the general term of the New York supreme court, reversing a decree of a surrogate on an insufficient bill of exceptions, will be reversed. H. E. Sickels, for appellant. B. W. Downing, for respondent.

FINCH, J. Probate of the will of Oliver Mott was resisted upon the ground of mental incapacity and undue influence. After listening to numerous witnesses, and taking a large amount of testimony, the surrogate rendered his decision, finding, as facts, that the decedent was a capable testator, and the will was his free act, and unaffected by any improper agency, and, as a conclusion of law, that the will should be admitted to probate. No exception was taken to any of these findings. The case recites an exception to the surrogate's decree, and each and every part of it. We have repeatedly pointed out the uselessness of such an exception. Ward v. Craig, 87 N. Y. 550; Hepburn v. Montgomery, 97 N. Y. 617. It indicates no specific error; it directs attention to no finding, and leaves court and counsel in the dark as to the precise cause of complaint. The case further shows a series of findings, which the surrogate was requested to make, and which requests were refused. There was no exception to the refusal. The contestants appealed; and, upon this case, which contained no exception raising any question of fact or law, and in which no errors in the admission or rejection of evidence are even claimed to exist, the general term reversed the decree of the surrogate, and ordered issues to be tried by a jury, entirely disregarding the provisions of the Code. Those provisions point out the practice to be followed with care and precision. Section 2545. The surrogate is required to file in his office his decision, stating separately the facts found and the conclusions of law. Either party may except to the findings of fact or of law, and, upon the settlement of the case, may request findings, and take exceptions to a refusal, and the appeal brings up for review in the appellate court any question of fact or law thus raised by exceptions taken. The purpose was to assimilate the practice upon appeals from a surrogate's decree, in the prescribed cases, to that which regulated appeals from a judgment rendered by the court or a referee, and to substitute a system which would point out specific errors, and evolve the exact questions intended to be reviewed. Nothing of this kind was before the general term, and, without some exception to some ruling or determination, that tribunal was powerless to reverse.

For this reason, the judgment and order of the general term must be reversed, and that of the surrogate affirmed, with costs.

(All concur.)

(103 N. Y. 680)


(Court of Appeals of New York. November 23, 1886.)


A finding of a referee that a domestic servant was treated like a daughter by her employer is not inconsistent with his finding that the relation between them was one of master and servant.


The right of a claimant to his disbursements upon the reference of his claim against a decedent's estate, given by section 317 of the old New York Code of Procedure, is preserved by Laws N. Y. 1880, c. 245, § 3, subd. 8.

The referee found that Orville C. Sprague died in August, 1880, making his wife his sole executrix, and that upon her decease defendant was duly appointed administrator with the will annexed of the estate of said Orville C. Sprague; that claimant performed services for said Orville C. Sprague, at his request, as a domestic in his family, and as his nurse, the reasonable worth of which, after deducting payment to apply on said services, was $675.16.

At the request of the defendant he also found among other things, that claimant's relations in Sprague's family were affectionate, and like those of a daughter, and Sprague had no children. It appeared that claimant was the niece of Sprague; that she lived with him and his wife from October, 1867, till the time of his death, and, after his death, with his widow till her death; that during this time she performed domestic service as well as man's work out of doors, and during Sprague's last illness claimant nursed him. There is evidence tending to show that Sprague agreed that she should be given the bulk of his property, on his and his wife's death. This their wills failed to do. Section 317, Code Civil Proc. N. Y., provided that, "whenever any claim against a deceased person shall be referred pursuant to the provision of the Revised Statutes, the prevailing party shall be entitled to recover the fees of referees and witnesses, and other necessary disbursements, to be taxed according to law." Subdivision 8, § 3, c. 245, N. Y. Law 1880, qualified the appeal by that act of section 37, Code Civil Proc. N. Y., as follows: "It does not afford the right of a prevailing party to recover the fees of referees and witnesses, and his other necessary disbursements, upon the reference of a claim against a decedent, as provided in those portions of the Revised Statutes left unrepealed after this act takes effect."

Elon R. Brown, for appellant, Maxon. kins.

W. H. Gilman, for respondent, Lar

PER CURIAM. We do not think that the findings of the referee were inconsistent. A domestic may be treated, in many respects, like a daughter, without holding that relation to the employer. The facts were sufficient to establish at least an implied contract for compensation; and, so far as there was an express one, it has not been fulfilled by the devise and legacy given by Mrs. Sprague. The destroyed will of Sprague and his wife bore somewhat on the actually existing relations between the parties, and formed incidents in the history of those relations. Since the referee found as a fact the existence of an implied contract, his opinion about an understanding "not amounting to contract" was immaterial.

From the judgment entered on the report of the referee the general term struck out the disbursements taxed and allowed, upon the ground that section 317 of the old Code of Procedure, which provided for their taxation, was repealed by the repealing act of 1880, and the right was not preserved by subdivision 8 of section 3 of that act. Upon the construction of that saving clause there has been a difference of opinion in the supreme court. In Miller v. Miller, 32 Hun, 481, and Daggett v. Mead, 11 Abb. N. C. 116, the saving clause was held to prevent the destruction only of the right to such disbursements as were provided for in the Revised Statutes, and, there being none such in a case like the present, there was nothing saved. To the contrary are Krill v. Brownell, 40 Hun, 72; Sutton v. Newton, 15 Abb. N. C. 452; Hall v. Edmunds, 67 How. Pr. 202; and Overheiser v. Morehouse, 16 Abb. N. C. 208. We think these last-cited cases establish the true construction of the subdivision referred to, and that it was intended and did preserve the right

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