John L. Yates, as General Assignee of Ogden C. Lowell, an Insolvent Debtor, Respondent, v. John M. Root, as Executor, etc., of Humphrey George Root, Deceased, Appellant

John L. Yates, as General Assignee of Ogden C. Lowell, an Insolvent Debtor, Respondent, v. John M. Root, as Executor, etc., of Humphrey George Root, Deceased, Appellant. Claim against a deceased person’s estate—evidence as to personal transactions, when incompetent—opinion based upon the fads as shown “by the evidence herein impi'oper — a referee must find the value, and not the worth to the other party, of, . services — claim against a dead man’s estate closely scrutinized. Upon the trial of an action brought to recover upon a claim against the estate of' a deceased person, after proof that the claimant did chores for the deceased* and superintended certain work upon his premises, the claimant was called as a witness, and several letters written by the deceased to him, which mentioned the services and attentions which had been received by the decedent from the claimant, were read in evidence. It appeared that the claimant was; present with the deceased during a portion of the time while these services' were being rendered. The claimant was .then asked: “What was the faiif reasonable value per day of the services so performed by you, as appears by. the evidence herein,” given upon the part of the executor. Held, that as to the services rendered when the deceased was present the question called for a personal transaction between the witness and the deceased and was improper; That it was also improper because it called for the opinion of the witness as to-the value of the services performed by him, “as appears by the evidence, herein,” as it did not appear that he knew and understood accurately all the evidence that had been given; , .... That it was erroneous for the referee to report that the services of the claimant were worth to the deceased a certain sum' per day; that, instead of this, he-should have found their actual value; : That a claim against the estate of a deceased person should be established by satisfactory evidence, showing the extent of the services and their value, and that it was the duty of courts to see that such estates were fairly protected against unfounded and rapacious raids. Appeal by the defendant, John M. Root, as executor, etc., of Humphrey George Root, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county, of Herkimer on the 26th day of August, 1895, upon the report of a referee. Defendant is the executor of Humphrey George Root, deceased, and the claim was presented to- him for the services of 0. 0. Lowell from October 1,1892, to December 2, 1894, 333 days at two dollars per day, making a total of $732, and credited thereon was cash $100.. The claim also contained another item-, to wit: “ To board furnished woman and boy, $3.00-. To services of wife, $2.00.” The executor rejected the claim and offered to refer it, and the surrogate of Herkimer county approved of the referee named in the agreement of the parties. The referee found as a fact that Humphrey George Root died on the first of December, 1893, leaving a last will wherein he appointed John M. Root, his brother, as sole executor. The will was probated and letters testamentary issued to the defendant. That -the claim above mentioned was presented in 1894 to the executor and that the same was disputed. The referee also found that Lowell performed work and rendered labor and services for the deceased at his request for which the deceased promised to pay. The services consisted principally in superintending improvements and repairs in the dwelling house of the deceased on Columbia street in Mohawk,. “ and in looking after the affairs of said deceased generally ; in caring for his lawn, his garden, his flowers, fruits, etc. ; in looking after his affairs and attending to his wants, he, the deceased, being an aged man. During the progress of the work of repairing and enlarging the said dwelling house, the said deceased was absent in the State of Michigan- visiting his brother and he left the entire management and direction of such improvements and repairs in the hands of said Lowell.” The referee also found that the deceased frequently, “ both orally and in writing,” said “ that he would see that said Lowell was ‘ adequately remunerated ’ for all his labors in his behalf.” In the sixth finding of fact the referee says: “ That the services so rendered by said Lowell for said H. George Root, deceased, were reasonably worth the sum $2.00 per day. I do not, however, find that the .said Lowell actually worked tea hours per day during the period above mentioned, but that his services as manager, general overseer, his skill, experience and good judgment, were worth to the said IT. George Root the said sum-of $2.00 per day; that said Root frequently expressed himself, both orally and in writing, as well pleased with what the said Lowell had done in his behalf and with his conduct and management of his matters and affairs.” The referee stated in his seventh finding, viz.: “ That said Lowell ivorked and performed labor and rendered services for said H. George Root, deceased, for 321 days, during the period of time from October 1st, 1892, to December 2d, 1893; that said Lowell is entitled to recover herein for the services mentioned in the foregoing seventh finding of fact, the sum of $642.00.” He finds that $150 had been paid thereon, “ leaving a balance due him, on account of such services so rendered, of $492.” The referee finds two other items amounting to $5. As a conclusion of law he found that “ the said claimant, Ogden O. Lowell, has a valid claim against the estate of said H. George Root, deceased for the sum of four hundred and ninety-seven ($497.00) dollars, with interest thereon from August 9th, 1894.” Exceptions were filed to the referee’s report. J. B. Rafter, for the appellant. W. H. Van Steenburgh, for the respondent. [MAJORITY — Hardin, P. J.:] Hardin, P. J.: Upon a careful examination of the evidence no definite proof is found of • the exact number of days of service rendered by Lowell for the deceased. The only definite evidence as to the labor performed by Lowell is found in the testimony of Wainman, the carpenter, who was engaged in repairing the deceased’s building. He testified that he, the carpenter, commenced work for the deceased about the middle of October, 1892, and worked there until about March 25, 1893, less some seven days; and he testifies, viz.: “ I do not think there was a day during the whole time I was there, but what Mr. Lowell was there. He was always working around at something.” The period of time covered by this witness does not exceed 138 secular days. This witness was aHowed to testify that Lowell’s services during that time were worth “ $2.00 a day, he • hoarding himself.” Aftér some other evidence given as to the services rendered by Lowell for the deceased in doing chores and giving further and other attention to the business and affairs of the deceased, the plaintiff called Lowell as a witness, and thereupon several letters of the deceased written to Lowell were produced and read in evidence. In the letters the deceased mentioned the services and attentions that had been received from Lowell. Thereupon the following question was propounded to the witness Lowell: “ What was the fair reasonable value per day of the services so performed by you, as appears by the evidence herein for H. G. Root?” This question was objected to “as improper, incompetent and inadmissible. Second. Improper and inadmissible under section No.. 829 of the Code of - Civil Procedure, and tends to prove services by the witness for deceased, and to prove personal transactions between this witness and the deceased. Third. No foundation has been laid by showing this witness to have knowledge of ail the evidence herein.” The objections were overruled and an exception taken and the witness was allowed to answer, “ The value is $2.00 per day.” From the course of the evidence- it appears that Lowell was present with Root a portion of the time when rendering some of the services embraced in the question. As to such services the question called for a personal transaction and was improper. (Holcomb v. Holcomb, 95 N. Y. 316; Fisher v. Verplanck, 17 Hun, 150.) In Taylor v. Welsh (92 Hun, 272) it was held that it was -not proper to allow a plaintiff to testify that he did chores, errands, etc., for..: the deceased, and that the admission of such evidence was harmful error which required a new trial to be ordered. (See, also, Heyne v. Doerfler, 124 N. Y. 508.) The question propounded was improper in another respect. It called for the opinion of the witness as to the value of the services performed by him “ as appears by the evidence herein.” It was not made clear that he knew and understood accurately all the evidence that had been, given. In Reynolds v. Robinson (64 N. Y. 589) a similar question was .condemned, and in that case it was said : “ It is not the province of the witness to reconcile and draw inferences from the evidence of other witnesses, and to take in such facts as he thinks their evidence has established, * * * and thus form, and express an opinion.” The doctrine of that case has been asserted in numerous other cases, (Guiterman v. Liverpool S. Co., 83 N. Y. 358; Hagadorn v. Conn. M. L. Ins. Co., 22 Hun, 249.) We ought not to disregard the error in receiving an' answer to the question propounded, as it does not clearly appear that no injury-resulted from the error. (Brague v. Lord, 67 N. Y. 499; Taylor v. Welsh, 92 Hun, 272.) The referee in his report says that the services rendered “ as manager, general overseer, his skill, experience and good judgment, were worth to the said H. George Root the said sum of $2.U0 per day.” Instead of finding the actual value of the services the referee seems to have adopted an erroneous rule in measuring the value of the services of the witness. The rule for estimating the- services should have been their actual value, and not such value as the services may have been supposed “tobe worth * * * to the defendant in the particular circumstances in which he was placed.” (Perrine v. Hotchkiss, 58 Barb. 77.) This is a case which, according to numerous authorities, we should scrutinize, and the claim should be established by satisfactory evidence relating to the extent of the services and the value thereof. (Kearney v. McKeon, 85 N. Y. 139; Rowland v. Howard, 75 Hun, 1; Forbes v. Chichester, 30 N. Y. St. Repr. 370; Matter of Van Slooten v. Wheeler, 140 N. Y. 624.) In the latter case it was said : “ The courts should see to it that such estates are fairly protected against unfounded and rapacious raids.” (See, also, Dorman, as Administrator, v. Gannon, post, p. 458.) The foregoing views lead to a reversal of the judgment. All concurred. Judgment reversed and a new trial ordered, with costs to abide ■ the event. • ,