It appears that the plaintiff rendered services to some extent to her grandfather, for which he executed and delivered to her his promissory note. That tlie sum was large for the amount of service shown must be conceded, but the amount was fixed by the maker himself, and he had a right to make his own estimate. It may well be, as held by the referee, that, on account of the relationship between the plaintiff and her grandfather, no promise would be implied to remunerate her for services. But it cannot be said that a claim for such remúneration would be so clearly unfounded that its extinguishment would be no consideration for a promise. The services continued after the note was made, and the circumstances indicate that the continuance of the services may have been, to some extent, amoving cause. The reiterated expressions of Mr. Titus that he wished the note paid, his employing counsel to insure its validity, have weight towards proving a consideration, and it must be remembered that a consideration is implied by law. It was for the defendant to prove affirmatively that no consideration existed. We think not only that he failed to do so, but that a sufficient consideration is affirmatively made out. It follows that the order appealed frpm should be reversed, and the motion to vacate the referee’s report should be granted, with costs to plaintiff of the general and special terms.
Velie v. Titus.
(Supreme Court, General Term, Second Department,
July 2, 1891.)
.Promissory Note—Consideration—Services to Grandfather.
Testator executed a note of $1,000 to claimant, his granddaughter, who had lived with him from the time she was 10 years old,—a period of about six years. The consideration recited in the note was “five dollars in hand paid, and for services rendered me, and for other good and valuable consideration, equivalent to the above named sum; which sum, when paid, shall be in full of all demands for services or otherwise which she has against me. ” It appeared that, during the time that claimant lived with testator, she rendered some services in household affairs, and waited on testator, and that such services continued after the execution and delivery of the note until testator’s death, about a year later. Testator had frequently declared that he had given claimant a note of $1,000 “for her kindness in waiting on” him. BLeld, that the note was supported by a sufficient consideration, and would be enforced against testator’s estate.
Appeal from special term, Dutchess county.
Claim by Anna Mary Velie against Samuel Titus, as executor of the will -of John H. Titus, deceased, on a note executed by testator, as follows: “$1,000.
“On demand, I promise to pay to Anna Mary Velie (my granddaughter) one thousand dollars, in consideration of five dollars in hand paid, and for services rendered me, and for other good and valuable consideration equivalent to the above-named sum; which sum, when paid, shall be in full of all demands for services or otherwise which she has against me.
“Dated Coffins Summit, February 14to, 1887.
[Signed] “John H. Titus.”
Claimant presented the note as a claim against the testator’s estate. Defendant, the executor, rejected the claim, whereupon it was referred by stipulation and order. Testator frequently declared that he had given claimant a note of $1,000 “for her kindness in waiting on” him. From an order of the special term denying a motion to set aside the report of the referee, appointed *468with the approval of the surrogate to hear and determine the claim, the claimant appeals.
Argued before Dykman and Pratt, JJ.
D. W. Guernsey, for appellant. M. A. Fowler, for respondent.
Case Details
15 N.Y.S. 467
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