Freund, Proctor and Rogers. The opinion of the court was delivered by Proctor, J.A.D.
Plaintiff's action was brought to recover for services rendered by her to defendant's testatrix, Louise Windisch.
The complaint consisted of two counts. The first was in quantum meruit and the second was grounded on a promise of the testatrix to reimburse the plaintiff in her will. A voluntary dismissal was entered on the second count at the beginning of the trial. The case, based on the first count, was submitted to the jury which returned a verdict in favor of the plaintiff. The defendant appeals and advances the following grounds for reversal: (1) it was error to admit the testimony of the plaintiff relating to her transactions with the decedent; (2) plaintiff did not establish a contract with the decedent under which she was to be paid for her services; (3) the verdict
was not supported by the evidence; (4) the court erred in denying defendant's offer of proof of payment.
Plaintiff testified she was not related to Mrs. Windisch, the deceased; that, during the six-year period preceding Mrs. Windisch's death, plaintiff did household and other work at the home of the decedent, including making repairs, two days every week and often at night.
Plaintiff's witness, Annette Braun, testified that she frequently visited Mrs. Windisch at her home and that every time she was there she saw the plaintiff working about the house; that Mrs. Windisch told her "she wouldn't know how to get along without Lena, because she was such a faithful person," and that at her death "she would remember Lena well, a substantial sum for all the work she has done all these years," and that she, the decedent, had so advised the plaintiff.
Another witness for the plaintiff, Florence Martin, testified that Mrs. Windisch, after mentioning the work performed for her by the plaintiff, said: "I intend to leave her something in my demise."
A provision for the plaintiff in decedent's will, which was in evidence, consisting of a bequest of $200 and a wristwatch, $50 in value at most, was refused on the ground that a larger sum was due her.
The appellant urges that, under R.S. 2:97-2, the trial court should have excluded the plaintiff's testimony regarding the work she did for the decedent. However, the first objection to this testimony was not made until after it was completed; the objection came too late. See Rowland v. Rowland , 40 N.J. Eq. 281, 284 (E. & A. 1885); Hoey v. Dell , 10 N.J. Super. 185 (App. Div. 1950). Moreover, it was admitted in the pretrial order that services were rendered by the plaintiff to Mrs. Windisch during her lifetime.
Appellant further contends that plaintiff did not establish a contract with decedent under which she was to be paid for her services.
Where services are rendered on the mere expectation of a legacy, and no legacy is left, there can be no recovery. Grandin v. Reading , 10 ...