Heitman

This action was brought to recover one thousand dollars, which sum, it is claimed, was received by defendant in trust for plaintiff. Judgment was for plaintiff, from which defendant appeals.

The facts are as follows: Plaintiff was for many years the gardener and coachman of one Francis Cuttingy deceased, and was unintentionally omitted by Cutting from any benefits under his will. On September 27, 1913, Mrs. Francis Cutting telephoned to her stepson, F. P. Cutting, that his father was ill in bed and desired to see him. Francis Cutting at this time was blind, seventy-nine years old, and had been ill for some months. Upon the son’s arrival Mrs. Cutting informed him that his father was very much distressed because he had not remembered his coachman, Henry Heitman, in his will. After greeting his sick parent, there was a short conversation between father and son, in which Francis Cutting, the father, ordered his son to draw the sum of one thousand dollars from the bank ‘ ‘ and give it to her for him. ’ ’ Appellant was in the room at the time, close to her husband’s bedside. The son was instructed to attend to it at once, and promised to do so. For some weeks prior to the death of…