Clapp, Jayne and Francis. The opinion of the court was delivered by Jayne, J.A.D.
[38 NJSuper Page 594] Vincenzo and Palma Grieco were united in marriage many years ago and brought forth children including among others a son Theodore and a daughter Theresa. Palma Grieco, the mother, died testate on September 20, 1951 at the age of 68 years, nominating her son Theodore to serve as executor and trustee in the administration
of her estate. Theodore qualified and assumed his representative duties. He was the principal beneficiary of the will.
Theresa, to whom her mother bequeathed the nominal sum of $1, instituted an action in the Chancery Division of this court to recover from the decedent's estate the reasonable value of the personal services she had rendered in the care of her mother from August 5, 1946 until the latter's death on September 20, 1951. In that action she acquired on June 12, 1954 a final judgment against the executor in the sum of $4,000.
The executor's father, Vincenzo Grieco, survived his deceased wife, Palma, and in that situation the executor has unsuccessfully sought in the present action against his father the equitable relief requiring the latter to exonerate the decedent's estate from the payment of Theresa's judgment. He failed in that endeavor and appeals.
Initially in our appellate review we must place the alleged cause of action in its proper socket and realize that the remedy called "exoneration" is the creature of equity jurisprudence and is granted or denied upon considerations of fairness and the elements of remedial justice. That which the plaintiff desired to establish is an equitable indebtedness.
We must also accord to the prior adjudication of Theresa's right of recovery for her services pursuant to an implied agreement with her mother the respect and recognition to which it is entitled. The fact that the deceased herself contractually engaged her daughter's services was determined against the denial of the executor in the previous action. It is noticed, too, that the executor did not seek the opportunity to usher into the prior action the present defendant as a party thereto "who is or may be liable to him for all or part of the plaintiff's claim against him." R.R. 4:14-1.
With that resurrection herein of the scenery of the past, we associate with it the testimony introduced at the trial of the present case.
It is informational to quote the following conclusions which Judge Stanton derived from the testimony and expressed
in his memorandum in the present action on March 22, 1955.
"2. In ruling on the claim of Theresa Grieco, I said this in my oral conclusions of May 13, 1954:
'Theresa came in there, dealing with her mother and the implied promise was that of the mother to pay her. The credit here was not ...