In re the Judicial Settlement of the Account of Hamilton

Hatch, J.: The referee found upon substantially undisputed testimony that the claimant furnished the board and house for the deceased during the pei'iod for which she makes claim. The obligation thus assumed [76] by the claimant was a duty which was imposed upon the husband. The primary obligation rested upon him, not only to support himself, but to support his family. Her assumption of an obligation not resting upon her, but which was imposed upon him, could not create a presumption that the food and lodging so furnished were intended to be gratuitous. It is a general' rule that where the relation of the parties is of such a character as repels the presumption of a promise to p'ay for service rendered, it will be presumed that the service was intended to be ■ gratuitous. The rule is well stated in Ross v. Hardin (79 N. Y. 84) and Lind v. Sullestadt (21 Hun, 364). But where the relation is such as casts upon the husband the duty of maintenance and support of his wife and family, no such presumption obtains. Undoubtedly if the wife chooses to assume the burden and does in fact apply her income to the maintenance of the family, intending that the same shall be gratuitous, no recovery can be had for the amount so expended. But where it appears that the husband recognized the obligation to support himself and not be supported by her, there is no presumption that the wife intended the application of her income as a gratuity to him. (Henckricks v. Isaacs, 117 N. Y. 411.) Under such circumstances, where the husband has been supported by the wife, any competent proof tending to show that the husband recognized an obligation upon his part to reimburse the wife for her outlay will' be supported and upheld as sufficient to create a valid indebtedness against his estate. In the present case it is practically undisputed that the board furnished was continuous and covered the period claimed in the account presented by the claimant. The paper introduced in evidence is a declaration upon the part of the husband not only that he received the board and paid nothing therefor* but that he was also indebted for the same. Consequently, every element of a good cause of action in favor of the claimant was established at the trial, and the wife became entitled to recover therefor. (Matter of Gallagher, 153 N. Y. 364.) The admission in that case which was held sufficient upon which to found an obligation against the estate, when connected with proof of the rendition of service, is no stronger in form than is the present declaration made by the husband, while the proof to show the rendition of the service is very much stronger [77] than appeared in that case. Therein the proof of service was slight and nearly inconclusive ; here it is strong and undisputed. It furnishes,. therefore, a controlling authority of the right of the plaintiff to recover. It is suggested that no proof of the value of the board and lodging was given and, therefore, that the admission of an indebtedness in the amount of $25,500 was excessive. It is sufficient to say that no point whatever was raised before the referee in respect to such matter, the whole claim of the respondents being based upon the theory that no recovery could be had of any sum, conceding all that appeared. But it is clear that the j>roof was sufficient upon which to found a claim, and the admission of the husband was of an existing indebtedness and sufficient upon which to found the promise to pay. It follows that the decree of the surrogate disallowing this claim should be reversed, and the report of the referee be in all respects confirmed, with costs to the appellant. Van Brunt, P. J., O’Brien, Ingraham and McLaughlin, JJ., concurred. Decree reversed and report of referee confirmed, with costs to appellant.-