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January 4, 1956

May REGAN, Plaintiff,
Joseph LENKOWSKY et al., Executors under the Last Will and Testament of Louis Lenkowsky, deceased, Defendants

The opinion of the court was delivered by: WORTENDYKE

Plaintiff, a resident of the State of New York, brings this action against the estate of Louis Lenkowsky, hereinafter sometimes referred to as 'decedent'. The executors are residents of the State of New Jersey. The amount in controversy is well in excess of the jurisdictional minimum in diversity cases.

 The plaintiff is a beautician. A single woman, she has lived and worked in New York City the greater part of her life.

 The decedent was a lumber and millwork company executive with active business interests to which he devoted himself up until the time of his death in August 1953 at the age of sixty-four. Prior to the death of his wife in April 1951, the decedent and his wife lived in Jersey City, New Jersey, but after her death the decedent took an apartment in North Arlington, New Jersey. For a considerable number of years before her death, the wife of the decedent had been an invalid. The decedent had four children, two sons and two daughters.

 It is not questioned that the decedent and plaintiff were acquainted for some period of years. The fundamental matter at issue in this litigation is the nature of this relationship and the legal obligations, if any, arising therefrom.

 The plaintiff was the principal witness at the trial. At the outset of her testimony, the defendants waived the provisions of a New Jersey statute which is designed to prevent a claimant against an estate from testifying as to transactions with or statements by the deceased. N.J.S.A. 2A:81-2. While other witnesses were called on the plaintiff's case, and several appeared for the defense, testimony concerning the status of the plaintiff and the decedent inter se came largely, if not almost exclusively, from the plaintiff. According to her testimony, she first met the decedent at a party in New York in 1941 or 1942. At that time the decedent was around fifty years of age and she was in her early thirties. Each was attracted to the other, and not too long after the initial meeting the result of this attraction manifested itself. In the first place, the decedent asked her if she would act as his hostess in entertaining business friends, a function which his wife, as an invalid, could not perform. This she agreed to do, because she had already grown very fond of him. In the second place, her fondness being reciprocated, she and the decedent engaged in intimate physical relations. Their intimacies occurred quite frequently throughout the remaining years of his life. At the same time, the decedent began to contribute regularly to the plaintiff's support. No fixed amount was involved and she never kept account of the moneys she received from decedent, but her recollection was that he gave her an average of $ 100 a month; however, it might have been more. Out of this amount she paid for telephone calls and other incidental expenses of the decedent, retaining the balance for herself. This financial arrangement lasted at least until 1951, but plaintiff did not indicate whether it continued until the death of the decedent. The decedent also gave her such gifts as a watch, a ring, a television set and a fur coat. During the course of a number of years she devoted some of her time to matters in furtherance of the business interests of the decedent. She made telephone calls for him, wrote letters for him, attended dinner parties, made reservations for such affairs, secured theater tickets and handled parking fines incurred by the decedent. He came with some regularity to her apartment in New York City. After his wife's death, he continued to do so and she often went to see him at his apartment in North Arlington. Aside from this, she frequently accompanied the decedent on over-night and extended business trips. They went to Atlantic City on numerous occasions and on trips to California, Oregon and North Carolina. He told her that he was miserable at home, in love with her and wanted to get a divorce and marry her; in fact, up until the time of her death he was always anxious to marry her, but this never came about. As time went on, she did a number of things for the decedent, the nature of which were unrelated to his business affairs. She picked up and delivered packages for him, had medical prescriptions filled, put drops in his ears, mixed gargles and handed pills to the decedent, massaged his shoulders, clipped the hairs in his ears, helped him to take care of a dandruff condition, and gave him pedicures. She also accompanied decedent when he bought suits and she purchased socks for him. From time to time she advised the decedent what he ought and ought not to eat. Although she never testified with any particularity about the frequency of rendition of services of either a business or personal nature, she said that she rendered similar services to the decedent before and after his wife's death. All of the foregoing came from the lips of the plaintiff.

 The major issue in this litigation is whether, after the death of the decedent's wife in April 1951, the plaintiff performed whatever services she may have rendered to the decedent as a mere gratuity, as might be done by one fond of another without expectation of compensation, except perhaps a voluntary testamentary token of appreciation; or whether what she did was in expectation of payment of moneys, which expectation was continuously renewed by the actual receipt of moneys from time to time and possibly the presumption that a substantial bequest would be provided for her by the decedent; or whether what she did was consideration for an enforcible agreement under the terms of which moneys given inter vivos were disregarded and compensation was to be made in the form of a bequest by the decedent.

 Plaintiff contends that her services were not rendered gratuitously or with the mere hope of a beneficent act by the decedent or in return for moneys which he gave her intermittently for her support, but that the sine qua non of what she did for the decedent was a promise by him that he would provide for her in his will. The plaintiff goes further and claims that she and the decedent entered into a specific agreement to this effect shortly after the death of decedent's wife, and that if this agreement had not been made she would have ended her relationship with him and undertaken an activity which would have allowed her no time for the decedent. The agreement as alleged in the complaint and testified to by plaintiff at the trial provided that she would give the decedent her companionship and services by way of practical nursing care whenever he chose to avail himself of such companionship and services during his lifetime, in return for which the decedent would make provision in his will for an annual income to her of $ 7,000 as long as she lived.

 Just how these two persons came to enter into the alleged agreement was the subject of much testimony by the plaintiff. The plaintiff stated that the decedent's wife was very ill before her death and that consequently she, the plaintiff, did not see the decedent immediately before or after that occurrence. To quote her own testimony as to what happened at this time and what transpired upon the first occasion on which she saw the decedent after his wife died in the Spring of 1951:

 'I had been alone for that time, and I got worried about my security * * * and at the time I was alone I realized I had to think of my support, so I decided to open a business for myself and have security that way * * *.

 'And I told him (the decedent) I decided to open a business and go into business for myself and have a security, and that I would break off my relationship with him altogether * * * and he asked me not to, and I said I couldn't see going on any more with it, and he told me 'What do you need to go into business for, I can take care of you. I will take care of you.'

 'And from that we went over (from plaintiff's apartment to Mrs. Levins' apartment (in New Jersey), and we started -- I had spoken to my friend, Margaret (Levins), before about my decision, and when we got there Mr. Lenkowsky (the decedent) said to Margaret: 'How do you like May? Now she wants not to see me any more, now that I am free and we can be married. Now she wants to break it off. She wants security; she wants to go into business for herself. Why, I can give her -- how much money can she earn if she goes into business for herself?' * * *

 'I decided if I went into business I could earn $ 7,000 a year. I would mean much harder work that I would be doing. I would have to give up a lot more time to it, and he said, 'Why do that?'

 'He said, 'I want to see you. I need you now more than I ever needed you, and please give up the idea of going into business, and I will see that I make it in my will that you get $ 7,000 a year.' * * *

 'He said, 'I need her more than she needs a business. She said she can make $ 7,000 a year. I want to give her $ 7,000 a year so that she doesn't go into business, and be free when I want her ...

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