to be so where the service is rendered to the parent or uncle, or other near relative of the party, on the ground that the law regards such services as acts of gratuitous kindness and affection." These remarks of Parsons are cited in Matter of Stevenson, 86 Hun, 325, 328.

In this case the relationship is that of uncle and nephew. In Williams v. Hutchinson, 3 N. Y. 312, 317, the law upon this subject is thus stated: "The parent is not legally entitled to the custody or earnings of his children after they arrive at the age of twenty-one; nor is he entitled to the earnings of, or bound to maintain, his nephews or nieces; yet if they live with him as members of his family without any contract or understanding that he shall pay for their services or receive pay for their maintenance, the law will not imply a promise to pay on either side." In Wilcox v. Wilcox, 48 Barb. 327, 329, the court says: "The law will not imply a promise to pay for board or services, as among members of the same family and persons more or less intimately or remotely related, where they are living together as one household, and nothing else appears." Abbott's Trial Evidence, page 359, states in substance, that the relation of nephew and uncle raises a presumption that no payment was to be made beyond that received by the claimant at the time. Jagal v. Goetz, 11 Misc. 380, is a case very much in point, or would be if the Statute of Limitations had not been raised as one of the defenses. In that case the plaintiff was the nephew of the defendant's husband and had been living at the defendant's ever since he came to this country, when a mere lad. The court says: "The plaintiff being in defendant's family as a portion of it, the promise or understanding to pay him wages was necessary, as without some understanding between parties bearing such relation. no agreement to pay for the services rendered would be implied and no action would lie."

The executor in this proceeding principally relies upon

Matter of Duffy, 19 Misc. 92. The claimant was a niece of the testatrix and rendered valuable services to her aunt in boarding and caring for her for seven years during the latter part of her life. There was no express agreement to pay, but there was an expectation on the part of the claimant that she would be remunerated by a provision in the testatrix's will. There was also an intention on the part of the testatrix to compensate her in this way. Claimant was made residuary legatee in her will, but the estate was exhausted by the general legacies, and there was nothing for the residuary legatee to receive. We have here an expressed intention to pay but a failure to do so. It may be that a question of fact arose that would bring that case within the principles laid down in Robinson v. Raynor, 28 N. Y. 494; Collier v. Rutledge, 136 id. 621. A contract express or implied could be inferred from the provision of the will, which remained unchanged, the same as if the testatrix had made and delivered her note. The residuary legacy in Duffy's case, although it shows an intention to pay, was not an effectual provision and the liability would still remain. The surrogate before whom that case was tried took another view of the case, using the following language: "The law implies an intention on the part of the testatrix to pay for valuable services rendered to her with her knowledge and consent. Thus we obtain the necessary element of contract. The relationship is not sufficiently close to bring this case within the rule that a contract to pay will not be implied." The other cases cited upon claimant's brief, viz.: Woodward v. Bugsbee, 2 Hun, 128; Bradley v. Bradley, 48 N. Y. St. Repr. 490, and Markey v. Brewster, 10 Hun, 16, are cases where there was proof of an express contract or of circumstances from which an implied contract might be inferred and do not state the general rule.

I will assume the law to be that where the relationship of a person taken into a family is that of an uncle, this alone will

not repel the presumption that his board is to be paid for. It is a fact, however, which casts suspicion upon the validity of a claim of this kind; it tends to rebut the presumption, and is to be taken into consideration with the other circumstances in the case, in determining whether the presumption is over

come.

The fact that the contract between William and Benjamin, as testified to by Benjamin's son, was not to be performed on William's part until after his death, casts grave suspicion upon the existence of such a contract and cannot be established without clear and satisfactory evidence. In Gaylord v. Gaylord, 7 N. Y. St. Repr. 703, the court says: "Alleged oral dispositions of estates to take effect in the future, or after death, should not be found or supported unless established by abundant evidence of the most satisfactory and convincing character." More forcibly and more at length is the language of the Court of Appeals in Shakespeare v. Markham, 72 N. Y. 400, 403: "Contracts claimed to have been entered into with aged or infirm persons, to be enforced after death to the detriment and disinheriting of lawful heirs, who otherwise would be entitled to their estates, are properly regarded with grave suspicion by courts of justice, and should be closely scrutinized and only allowed to stand when established by the strongest evidence. More especially should this rule prevail when the contract is not in writing, rests entirely upon parol testimony, which is not very precise and somewhat uncertain, and is directly in conflict with the will of the deceased, executed some time before the agreement claimed was entered into, and which remained unrevoked at the time of his decease." In the case in hand, the estate would be more than half consumed if the executor's claim be allowed as presented, and if the testator had lived two years longer at the same rate of charge by Mr. and Mrs. Benjamin Jones the estate would be insufficient to pay

the claims. We are asked to accept this contract as proved upon the uncorroborated testimony of the claimant's son.

If, on the other hand, the claimant rests his case on an implied agreement to pay the reasonable value of decedent's board and care, he is met by the difficulty that no bill for board or care was ever presented by the claimant during the lifetime of the testator and that no payment was made on account. This also is a circumstance to be considered in determining whether the presumption of an implied contract that decedent should pay for his care and board has been overcome. Says the Court of Appeals in Kearney v. McKeon, 85 N. Y. 136: "Claims withheld during the life of an alleged debtor, and sought to be enforced when death has silenced his knowledge and explanation, are always to be carefully scrutinized, and admitted only upon satisfactory proof."

In speaking of this class of claims the surrogate of New York has well said in Bowen v. Bowen, 2 Bradf. 336: "De mands of this character are not unusual in administration cases; and as the party who had the best means of controverting them has been removed by death, they are not to be regarded with any favor, especially where the claimant has allowed his claim to sleep during the lifetime of the decedent. In all cases of this kind, the evidence should be very clear that the services were performed by the claimant, expecting to be paid for them, and that the decedent so understood it, or had reason to believe that he was to be charged therefor."

The unsupported testimony of claimant's son is not such clear and satisfactory proof of an express contract as to overcome the suspicious circumstances connected with the claim. In Hughes v. Davenport, 1 App. Div. 182, 184, the court says: "The rule that a fact testified to by a disinterested witness who is not discredited, which is not in conflict with other evidence, is to be taken as legally established, and cannot be dis

regarded by the court or jury, is not applicable to this class of cases."

On the whole case, the executor has not proved his claim to the satisfaction of this court within the rules of law applicable to this class of cases. Winnie v. Hills, 91 Hun, 89, 92; Van Slooten v. Wheeler, 140 N. Y. 624, 633. If the executor has suffered harm by reason of the application of the rules of law to the evidence in this proceeding, he has himself alone to blame for it. The difficulty in proving his claim could easily have been obviated, either by a written contract, or by some other method that would have furnished satisfactory proof of his right to compensation. Forbes v. Chichester, 30 N. Y. St. Repr. 370.

On the other hand, if, as the evidence shows, it was the intention of claimant to furnish a home for his uncle without charge, he cannot now, however meritorious his services, recover on a quantum meruit or otherwise for his services and acts of kindness. Moore v. Moore, 3 Abb. Ct. App. Dec. 303, 312.

For the above reasons the claim of the executor to compensation out of the estate of the deceased, for the board and care of said decedent, is disallowed.

Decreed accordingly.

Matter of the Final Judicial Settlement of the Accounts of BROWNELL TOMPKINS, as Executor, etc., of FIDELIA CLARK, Deceased.

(Surrogate's Court, Madison County, Filed July, 1899.)

1. WILL-TRUST IN PERSONALTY-ASSIGNABILITY OF INCOME.

A will directed a trustee to use the income of the trust fund to the personal support, maintenance and comfort of a son, and from time to time to personally apply such portion of the income as the trustee might deem necessary and proper to the purchase of clothes for the