The defendants' testatrix was at the time of contracting the alleged debt a married woman. It was necessary to the maintenance of this action to establish not only that she agreed to pay the plaintiff for her services, but that such services were for the benefit of the separate estate of the testatrix, or that it was a part of the alleged contract for the services, that plaintiff's compensation should be a charge upon *Page 47 such separate estate. The referee has found adversely to the plaintiff on all these points. He finds that the testatrix and her husband, while plaintiff was living in their family, did on two occasions, assure the plaintiff that she should be rewarded for what she was doing in the family, but that nothing was said in either of those conversations as to when or how she was to be rewarded or paid, and the testatrix did not intimate or promise that she would herself pay or reward the plaintiff therefor, nor that she would do so out of her own property or means. That during her last illness the testatrix, in presence of plaintiff, expressed her intention to provide for the plaintiff in her will as a compensation for her services, and that she did in fact make a testamentary disposition in her favor amounting to about $1,000, which was stated in the will to be in full of plaintiff's claim for past services, but that the real and personal estate of the testatrix proved insufficient to pay her debts. The referee further finds that the testatrix never carried on any trade or business on her separate account. That she never for herself or on her own account employed or requested the plaintiff to perform any of the services in question, and never agreed to pay for such services out of her separate estate or otherwise, nor that she would charge the payment thereof upon her separate estate, except by will as above stated.
These findings clearly sustain the conclusion of the referee adverse to the right of the plaintiff to recover. Assuming that the conversation about a testamentary disposition, or the provision of the will itself could be construed into an agreement to charge the value of the plaintiff's past services upon the separate estate of the testatrix, they still would be insufficient to effect that result within the rule laid down inYale v. Dederer (22 N.Y., 456), which requires that the agreement to charge the separate estate be included in the original contract, out of which the indebtedness is claimed to arise. (See, also, Manhattan B. M. Co. v. Thompson, 58 N.Y. 82; Maxon v. Scott, 55 N.Y., 247.)
We have examined the testimony with a view to ascertain *Page 48 whether any of the findings of fact are so entirely unsupported by evidence that we can sustain the exceptions to them as errors of law, but have failed to find any of those exceptions well taken. The refusals to find according to the plaintiff's requests can only be sustained by showing that the facts requested to be found are conclusively established by the evidence and are material. Some of them are sustained by evidence, but we cannot hold that it is so conclusive as to authorize us to treat the refusals as errors of law. The referee had the power to judge of the credibility of the witnesses, and was not absolutely bound by their statements where they manifested bias or made contradictory statements. We cannot vary his findings or over rule his refusals, unless they are conclusively shown to be erroneous. The exceptions to the referee's rulings on questions of evidence were, we think, correctly disposed of at General Term.
The judgment must be affirmed.
All concur, except FOLGER, J., absent.
Judgment affirmed.