Gallagher v. Estate of Brewster

Williams, J.: We are of the opinion the judgment should be affirmed. While the memorandum found among the deceased’s papers was not valid as an obligation, it was competent as evidence in the case as an admission. (Robinson v. Cushman, 2 Den. 149-153; Govin v. de Miranda, 140 N. Y. 474.) These cases are both authorities for the proposition that a memorandum found among a deceased’s papers is a competent piece of evidence as an admission against his estate. The effect to be given to such a piece of evidence may well vary in different cases. In Robinson v. Cushman (supra) a memorandum was held to be of little or no value. In Govin v. de Miranda (supra) a memorandum was held to establish plaintiff’s ownership to bonds of great value. In this case, considering this piece of evidence in connection with the other proofs in the case, we are not satisfied that the plaintiff’s claim should be allowed. The claim for services was evidently made up after the discovery of a memorandum among the papers of the deceased. The relation of the parties and nature of the service rendered, and the circumstances surrounding the parties and the services do not furnish sufficient ground for the belief that the services were rendered under any promise express or implied or any expectation that they should be paid for. The evidence rather leads us to the conclusion that the memorandum was designed to effect a gift or gratuity to a friend out of his estate which he did not see fit to provide for by his will. For this no recovery can be had. The decision of the referee was right. The judgment should be affirmed, with costs. Yam Brunt, P. J., Barrett, Patterson and O’Brien, JJ., concurred. Judgment affirmed, with costs.