In this accounting proceeding, four of the decedent's grandchildren filed objections to the executrix' rejection of their claims. Each objectant seeks recovery as the payee of a $20,000 promissory note executed by the decedent. The executrix now moves for summary judgment dismissing the objections on the grounds that the four promissory notes were not supported by consideration. The objectants oppose the motion and cross-move for summary judgment.

The decedent died on December 15, 1995 at the age of 94. Her distributees are three children and four grandchildren who are not the objectants. Her will dated April 13, 1991 explicitly disinherits her surviving son, the objectants' father, and his issue. It was only after a probate contest was settled by paying $7,500 to the objectants' father, and the will was admitted to probate pursuant to a decree entered May 19, 1998, that the objectants filed their claims against the estate.

The four promissory notes at issue are typed on a pre-printed form. Each one is payable to one of the objectants in the amount of $20,000, is dated March 3, 1995, bears no interest and is apparently signed by the decedent. The due dates on the four notes differ as follows: April 1, 1996, May 1, 1996, June 1, 1996 and July 1, 1996.

All four of the objectants were deposed. They all testified that they did not know who prepared the promissory notes and that their grandmother, who was in her 90's, was not fluent in English and could not have typed the notes. One of the objectants testified that during her visit with the decedent on or about March 3, 1995, the decedent signed the previously prepared four notes in the objectant's presence and told the objectant to retain the note payable to her and to deliver the other three notes to her siblings.

The objectants' testimony with respect to their relationship with the decedent and the chores that they performed for her was similar. Usually, they visited her at least weekly. All of the objectants indicated that they performed chores or other tasks for their grandmother out of love and affection and not for specified compensation. There was no testimony indicating that they were required or expected to perform services on a daily basis or any other fixed schedule. However, on numerous occasions, one or more of the objectants assisted the decedent with the following chores: dealing with problems with her tenants, taking her to pay taxes on her real property, shoveling snow, [*2]raking, other garden work, household repairs, painting hallways, picking up groceries and other errands. They also stated that the decedent told them on many occasions that she wanted to compensate them for the services that they rendered for her.

The executrix claims that the notes fail for lack of consideration. She asserts that the objectants' testimony establishes that the services they performed cannot, as a matter of law, be deemed consideration for the notes. In their opposition and cross-motion, the objectants assert that any consideration, no matter how limited in value, is sufficient. They contend that the services they provided were sufficient consideration to support the notes and, therefore, the executrix should pay their claims.

Summary judgment will be granted only where no material issue of fact exists (Glick & Dolleck, Inc. v Tri-Pac Export Corp., 22 NY2d 439 [1968]; Phillips v Joseph Kantor & Co., 31 NY2d 307 [1972]). The movant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in admissible form to demonstrate the absence of any material issue of fact (Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Friends of Animals, Inc. v Assoc. Fur Mfrs., Inc., 46 NY2d 1065 [1979]). When the movant has made a prima facie case, the burden of going forward shifts to the party opposing the motion to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact (Zuckerman v City of New York, 49 NY2d 557 [1980]). Summary judgment is a drastic remedy which requires that the party opposing the motion be accorded every favorable inference and issues of credibility may not be determined on the motion but must await the trial (Westhill Exports, Ltd. v Pope, 12 NY2d 491 [1963]). The papers submitted in the summary judgment application are always scrutinized in a light most favorable to the party opposing the motion (Robinson v Strong Mem. Hosp., 98 AD2d 976 [1993]).

Notwithstanding that the notes are negotiable instruments which might create an inference of the existence of consideration (Matter of Phillips, 12 Misc 2d 402, 404 [1958]), the objectants are not entitled to payment on the notes should it be established that the notes are not supported by consideration. This is so because the objectants would have had to have taken the notes "for value," as defined in Uniform Commercial Code § 3-303, to enjoy the status of a holder in due course (UCC 3-302) and absent having the rights of a holder in due course, "failure of consideration" defeats the claims of the objectants to enforce the notes (UCC 3-408). Acts or services which are insufficient to constitute consideration for a contract are also insufficient to constitute consideration for a note (80 NY Jur 2d, Negotiable Instruments § 162). Services that are usually rendered by family members, relatives, friends and neighbors out of love and affection, or without expectation of compensation, are presumed to have been rendered gratuitously and do not constitute consideration for a note unless the presumption is overcome by convincing proof establishing that the maker of the note made a prior or contemporaneous promise to pay for specified services that were performed in exchange for the promise (80 NY Jur 2d, Negotiable Instruments §§ 165, 166).

The objectants rely upon Matter of Dashnau (194 Misc 156 [1948]), in support of their contention that the various chores that they performed for their grandmother and her promise to pay for those services, as evidenced by the promissory notes, constitute consideration to make the notes enforceable. The facts in Dashnau are as follows: [*3]prior to the death of the decedent's wife, their daughter, the claimant, at the decedent's request, would care for her mother when needed; on at least one occasion the claimant left her marital abode in one city to care for her mother for several days at her parents' home; after the death of the claimant's mother, the decedent gave the claimant a $7,500 note, telling the person who drafted the note that the note was "in payment of what she (claimant) had done for him and what he thought she would be able to do for him;" and, on the date that the note was delivered to the claimant, she and her husband changed their residence to the decedent's residence, where she and her husband performed all of the household duties and purchased food for the family for approximately 18 months until the decedent's death. Surrogate Penny noted that if the only alleged consideration for the note "was the occasional prior services rendered by the claimant to her mother at the request of the decedent, then we must hold that the note was without consideration;" however, he held that the note was a valid obligation because "the inference seems inescapable that she (claimant) promised to and did perform these services (change her residence, housekeeping services and purchasing food) relying upon the promise of her father as contained in the note" (Matter of Dashnau, supra, at 159-160).

Here, unlike Matter of Dashnau, supra, the various chores performed by the objectants for their grandmother did not become more onerous after the notes were delivered to them and did not involve a change in their lifestyles or the performance of specified services on a regular basis. The services that they sporadically performed for their grandmother are insufficient to create an inference that they were done in exchange for, and in reliance upon, her promise to pay each of them $20,000. In short, the notes constituted no more than the decedent's intention to make a $20,000 gift to each claimant, effective in approximately one year, in appreciation of their being devoted grandchildren. Consequently, this case is governed by the case law holding that services that are usually performed by relatives or friends as a result of the relationship between the parties are insufficient to constitute consideration for a note and that a note given in appreciation of such services is not enforceable against the estate of the maker (Dougherty v Salt, 227 NY 200 [1919]; Rubin v Budabin, 40 AD2d 690 [1972], affd 32 NY2d 918 [1973]; Strevel v Jones' Estate, 106 App Div 334 [1905]; Matter of Phillips, supra).

In Rubin v. Budabin, supra, the decedent gave his niece a sealed envelope containing a $60,000 promissory note for services rendered and to be rendered, consisting of preparing and delivering meals to the decedent's place of business, taking the decedent's sister, the claimant's mother, to visit him, telephoning the decedent and assuring him of her love and affection. The niece did not open the envelope until after the decedent's death and then made a claim against his estate. The Appellate Division reversed a jury determination in favor of the niece and held that there was no question of fact to be determined by the jury because "the nature and extent of the past and future services allegedly performed by plaintiff for ... her uncle were insufficient as a matter of law to constitute consideration" and, instead, "clearly fall into the category of gratuitous acts rendered without expectation of payment" (40 AD2d at 691).

Here, the services rendered by the objectants for their grandmother are not significantly different than the services performed by the niece in Rubin v Budabin, supra. [*4]Moreover, the objectants concede that they performed those services out of their love and affection for their grandmother. They do not claim that the notes were delivered to them because they had indicated to their grandmother that they would stop performing these chores if she did not pay or promise to pay for such services. Consequently, those services, as in Rubin v Budabin, supra, cannot be deemed to "constitute consideration" for the notes and, instead, must be classified as "gratuitous acts" done by one family member for another. The proof submitted indicates, as would be the case with most grandchildren, that the objectants performed such services out of love, affection and respect for their grandmother. Neither the fact that the decedent appreciated the services rendered by the objectants, nor that she might have given the notes to make up for not having included them as beneficiaries in her will, can convert the services performed by the claimants into consideration for the notes or convert the notes into a valid testamentary instrument.

For the reasons stated above, the court holds that the services rendered by the objectants for their grandmother are insufficient to constitute consideration to make the notes enforceable against her estate. Accordingly, the motion to dismiss the objections is granted and the objectants' cross-motion is denied.

Settle decree.



SURROGATE