Simons v. Cromwell

• Decision Date: 19 December 1919
• Docket Number: 57.
• Citation: 262 F. 680
• Parties: SIMONS v. CROMWELL et al.
• Court: U.S. Court of Appeals — Second Circuit

262 F. 680

SIMONS v. CROMWELL et al.

No. 57.

United States Court of Appeals, Second Circuit.

December 19, 1919

Roger Foster, of New York City, for plaintiff in error.

Sullivan & Cromwell and Clarke M. Rosecrantz, all of New York City (P L. Miller, of New York City, and Hiram C. Todd, of Saratoga Springs, N.Y., of counsel), for defendant in error Cromwell.

Edgar T. Brackett, of Saratoga Springs, N.Y., for defendant in error Cramer.

Before WARD, ROGERS, and MANTON, Circuit Judges.

WARD Circuit Judge.

This is a writ of error to a judgment for the defendants, executors of the estate of Frank Leslie, deceased, directed by the court. The complaint demanded judgment in the sum of $40,000 upon three separate causes of action as follows:

First. A promise made by the decedent, Mrs. Leslie, to the plaintiff in 1902, that in consideration of personal services theretofore and to be thereafter rendered by her, to bequeath her a legacy of $50,000; whereas, Mrs. Leslie bequeathed her a legacy of only $10,000.

Second. A promise, in consideration of the services aforesaid, to pay to the plaintiff the reasonable value of the said services which was the sum of $50,000, no part of which the decedent has paid, except by a legacy of $10,000.

Third. A promise, in consideration of the services aforesaid, to bequeath the plaintiff a sum equal to the reasonable value thereof, which was $50,000; whereas, the decedent left the plaintiff only a legacy of $10,000.

The answers of the defendants contained denials, and also pleaded to the second cause of action the New York statute of limitations of six years.

Mrs Leslie sustained a paralytic stroke in 1902, and was thereafter, down to the time of her death at the age of 77 in 1914, a semi-invalid. Evidence as to her wealth and as to her relatives was proper, and it appeared therefrom that she was a rich woman, with no direct descendants, and that the plaintiff is her first cousin. Our conclusion makes it unnecessary to state in detail the particulars of Mrs. Leslie's disabilities and of the plaintiff's services. Suffice it to say that for the 12 years in question the plaintiff spent one or two months each year with Mrs. Leslie, and did render her services made necessary by her age and condition of health.

Taking up, first, the second cause of action, it will be seen that within 6 years of the decedent's death the plaintiff could in the aggregate have rendered services covering a period in all of not over one year. We agree with the trial judge that $10,000 was as much as any jury could award as the reasonable value of such services. Any verdict rendered for the plaintiff on this cause of action would have been set aside by the trial judge, and therefore it was within his power to direct a verdict in favor of the defendants on it.

The testimony in support of the third cause of action was that of the plaintiff's son, as follows:

'I had a conversation with Mrs. Leslie about what she intended to do for my mother after her death in the year 1904 at Charleston. I saw that Mrs. Simons was running down in health, and I thought I would take her out to the theater. I wanted to invite her to the theater. So, on a drive in a carriage with Mrs. Leslie-- we used to relieve her from that duty at times-- I invited her, and she said she didn't want to go. I knew she wouldn't go, because she always went to bed at 9 o'clock. I asked her, did she object to Mrs. Simons going, and she said she did. I said, 'I think she ought to have a little recreation,' and she said to me, 'Robert, your mother is going to be well paid for what she is doing for me, and I don't wish her to go,' so I dropped the conversation further.

'Q. Did she say how your mother was going to be paid? A. I inferred from her previous statement--

'Mr. Rosecrantz: No; no.

'A. Not at that time.

'Q. What

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