Charlotte L. Bair, Respondent, v. J. Henry Hager, as Executor, etc., of Eliza Hager, Deceased, Appellant

Charlotte L. Bair, Respondent, v. J. Henry Hager, as Executor, etc., of Eliza Hager, Deceased, Appellant. Promise to pay for services by making provision therefor by will — recovery therefor, where no such provision is made— the Statute of Limitations runs from the death of the promisor. Where board and personal services are furnished and rendered for a period of nearly eleven years to a person since deceased, in reliance upon the decedent’s promise to compensate, by a sufficient provision in her will, the person furnishing and rendering such board and services, the failure of the decedent to make any provision for such person in her will entitles the latter to recover from the decedent’s estate the value of such board and services whether the failure'to make compensation by will arose from accident of design. There being, in such a case, no breach of the agreement to make compensatiou by will until the decedent’s death, the Statute of Limitations does not begin to run until the death and the claimant’s recovery is not limited to a period of six years. ■ Appeal by the defendant, J. Henry Hager, as executor, etc., of Eliza Hager, deceased, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 26th day of December, 1903, upon the report of a referee. J. L. Williams and II. JET. Yarn Cleef.\ for the appellant. Frank B. Lown and Benjamin M. Fowler, for' the respondent. [MAJORITY — Hibschbebg, P. J.:] Hibschbebg, P. J.: The claim in controversy is for board and personal services furnished and rendered to the decedent for a period of nearly eleven years. The referee has found upon abundant evidence that the services were performed upon a promise made by the deceased to compensate the claimant by a sufficient provision in her will, and that the deceased wholly failed to make such provision for the claimant’s compensation. In such circumstances the party rendering services is entitled to compensation as a creditor of the estate for the value of the services whether the failure to make the agreed compensation arose from accident or design. . (Robinson v. Raynor, 28 N. Y. 494; Collier v. Rutledge, 136 id. 621; Gall v. Gall, 27 App. Div. 173 ; Leahy v. Campbell, 70 id. 127.) The amount allowed by the referee is not excessive, and no good reason is disclosed by the record for interference with the result. The claimant is not limited to a period of six years for her recovery. There was no breach of the agreement until the failure of the deceased to provide by will for the claimant’s compensation, and the Statute of Limitations did not commence to run until the death of the deceased, (Leahy v. Campbell, supra, and Taylor v. Welsh, 92 Hun, 272.) The learned counsel for the appellant direct special attention to the case of Matter of Hart v. Tuite (75 App. Div. 323). That case lias no analogy to this one. There there was nothing to account for the fact that during the long period of the rendition of the services no demand was made for payment and no payment ever made on account. It was, therefore, held that the claim should be carefully scrutinized, and only allowed when established by satisfactory evidence relating both to the extent and value of the services. Here, however, the reason for non-payment is to be fomuTiu the fact that by mutual agreement such- payment was-, to be- deferred until the death of the employer. Until then no debt was due- and no- lawful demand could be made. Moreover, the- claim in this; case, both as to the extent and the value of the. services, appears to have been established by satisfactory evidence,, and the decision is. accordingly ■ jiistjified by the rule announced in Matter of Mart v. Tuite (supra). The judgment should be affirmed. . All concurred. Judgment: affirmed-,, with costs.