Meindert Zegel, a West Sayville oysterman, died in December, 1905, leaving a widow, Maatje, and three *60children, of whom Paul was the youngest. His will named Paul as executor, and gave his property to his widow for life and then to go equally to the three children. Eor four or five years before his father’s death, Paul had lived at home, working with his father in the oyster business, and when engaged outside in clamming and other employment, he had paid his earnings to his mother, who used them with the household funds. Though over twenty-one years old, Paul then received only board, clothes, moderate spending money, with gifts of five dollars or ten dollars on Fourth of July and twenty dollars or twenty-five dollars at Christmas.
After the father’s death Paul lived in the house with his mother, to whom as executor he paid the income of the estate. The mother made a will in Paul’s favor. In 1909 Paul married and set up housekeeping in a part of the house occupied by his mother, paying rent therefor. The mother afterwards destroyed her will, and so informed Paul.
In filing his account as executor on December 16, 1912 — seven years after his father’s death — Paul included a claim for work, labor and services in his father’s oyster business for parts of the years 1900-1906 inclusive; also for the gross earnings in these years from clamming and other pursuits which he had turned over to his mother from week to week. The widow, Maatje Zegel, and Tonis Zegel, a brother, filed' objections to this account.
In the hearings before the surrogate there was uncontradieted evidence of an old-world custom brought over and observed among the Hollander fisherfolk at West Sayville. It had long been the local usage that a son, although over age, who continued to live at home with his- parents, only received his board and clothes, with an allowance for spending money and for holidays. ' ■
As there was no evidence of any agreement, express or implied, to pay Paul wages while he was at home, the learned surrogate rejected that part of his claim. He, however, allowed *61him $1,834, being $1,584 for the average weekly gross earnings paid to his mother, also a further sum of $250 for part proceeds of an oyster lot, also paid over to her. The court made a finding, to which there was no exception^ that there was no evidence that deceased had any knowledge of such payments to his wife or knew that she used such earnings for family expenses, or had mingled them with deceased’s other moneys.
The custom at West Sayville among the Dutch oystermen as to sons working for their parents while still members of one household, with these negative findings as to any promise, knowledge or understanding by Meindert Zegel to repay these gross earnings, repel any presumption o°f a promise, direct or implied, which would require the estate to pay back to respondent his earnings, after seven years, or give him the standing of a creditor of the estate. ' (Matter of Delaney, 27 Misc. Rep. 398; 29 Cyc. 1621.)
The decree of the Surrogate’s Court of Suffolk county should, therefore, be reversed, and respondent’s claim in his account against the estate entirely disallowed, with costs.
Jenks, P. J., Thomas, Carr and Rich, JJ., concurred.
Decree of the Surrogate’s Court of Suffolk county reversed, and respondent’s claim in his account against the estate entirely disallowed, with costs.