Opinion · District Court, E.D. New York
Peterson v. United New York Sandy Hook Pilots Ass'n
Peterson v. United N.Y. Sandy Hook Pilots Ass'n, 17 F. Supp. 676 (District Court, E.D. New York 1936)
- Type
- Opinion
- Court
- District Court, E.D. New York
- Jurisdiction
- New York
- Date
- 1936-12-15
- Topic
- estate-planning
GALSTON, District Judge. Exceptions to the master’s report filed by the claimant and the respondent herein relate to an award of $32,500 to Clarence Faye as ancillary administrator of the estate of Hugh McIntyre, deceased, for the benefit of Charlotte M. McIntyre. The report of the special master is an unusually detailed analysis of the record of the proceedings had before him, together with a careful analysis of pertinent authorities on the law. Critically the question to be determined is whether the commissioner had reasonable grounds for concluding that after the marriage or majority of Elise, daughter of Mrs.
Citator
UpLaw has not yet analyzed Peterson v. United New York Sandy Hook Pilots Ass'n. The absence of a flag is not a finding that it is good law.
- Cited by
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PETERSON v. UNITED NEW YORK SANDY HOOK PILOTS ASS'N, (E.D.N.Y. 1936)
17 F. Supp. 676
PETERSON et al. v. UNITED NEW YORK SANDY HOOK PILOTS ASS'N et al.
THE BLACK GULL.
PETERSON v. AMERICAN DIAMOND LINES, Inc.
Nos. 14105, 14407.
United States District Court, E.D. New York.
December 15, 1936.
West Page 677
Report modified and confirmed and exceptions overruled.
See, also, (D.C.)11 F. Supp. 411.
The following is the report of Harry A. Yerkes, Jr., Special Commissioner:
The claims are for damages for the deaths on January 26, 1933, of Hugh McIntyre, a Sandy Hook pilot, and Albert Rudolph Strandberg and Charles M. Peterson, applicant apprentices employed by the United New York Sandy Hook Pilots Benevolent Association, and arise under the Federal Death Act of 1920 (46 U.S.C.A. §§ 761, 762), reading as follows:
"§761. Right of action; where and by whom brought.Whenever the death of a person shall be caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State, or the District of Columbia, or the Territories or dependencies of the United States, the personal representative of the decedent may maintain a suit for damages in the district courts of the United States, in admiralty, for the exclusive benefit of the decedent's wife, husband, parent, child, or dependent relative against the vessel, person, or corporation which would have been liable if death had not ensued. (Mar. 30, 1920, c. 111, § 1,41 Stat. 537.)
"§762. Amount and apportionment of recovery.The recovery in such suit shall be a fair and just compensation for the pecuniary loss sustained by the persons for whose benefit the suit is brought and shall be apportioned among them by the court in proportion to the loss they may severally have suffered by reason of the death of the person by whose representative the suit is brought. (Mar. 30, 1920, c. 111, § 2,41 Stat. 537.)"
Recovery is limited to thepecuniary losssustained by those for whose benefit the actions have been brought, and in this respect the statute is similar to the Federal Employers' Liability Act of 1908 (45 U.S.C.A. § 51et seq.).
In Chesapeake Ohio Ry. Co. v. Kelly,241 U.S. 485, at page 489,36 S.Ct. 630,631,60 L.Ed. 1117, L.R.A. 1917F, 367, the Supreme Court defined "pecuniary loss" as follows: "The damages should be equivalent to compensation for the deprivation of the reasonable expectation of pecuniary benefits that would have resulted from the continued life of the deceased."
Accordingly, there may be no allowance for grief nor for loss of society and companionship. Michigan Central Railroad Co. v. Vreeland,227 U.S. 59,33 S.Ct. 192,57 L.Ed. 417; Middleton v. LuckenbachWest Page 679S. S. Co., Inc., et al.70 F.2d 326(C.C.A.2).
In Drowne v. Great Lakes Transit Corporation,5 F.2d 58, at page 60, the Circuit Court of Appeals for the Second Circuit stated: "These are many elements that enter into the assessment of damages for the wrong resulting in loss of life. The deceased's age, his earning capacity, his dependents and their ages, his condition of health, his prospect of advancement in position and employment, are all elements to be considered. His contribution to his family is an important factor."
The various claims will now be discussed in detail.
(1) Claim of Charlotte M. McIntyre.
Mrs. McIntyre, at the time of her husband's death on January 26, 1933, was 39 years old (born March 10, 1893). McIntyre was 49 (born October 5, 1884). They were married on October 5, 1914, and had one child, Elise Louise, born December 12, 1915.
In March, 1923, Mrs. McIntyre started suit for separation in the Supreme Court, New York County, on the ground of cruel and inhuman treatment during 1920 and 1921. She further alleged that her husband abandoned her on October 8, 1921, since which time they lived apart. A decree of separation was entered on April 17, 1924. McIntyre did not contest the action, but he appeared in person at the trial and testified with respect to his earnings. With his consent, the decree awarded alimony of $3,600 per year, payable $300 per month, of which amount $150 was for the support and maintenance of Mrs. McIntyre, and $150 was for the support, maintenance, and education of the daughter Elise.
The decree contains the usual clause permitting the parties to apply for a modification in the event of changed circumstances. In February, 1926, Mrs. McIntyre applied for an increase of alimony, but her application was denied. In January, 1928, she obtained an order appointing a referee to take testimony as to McIntyre's income, and after the filing of the referee's report she again moved for an increase of alimony, but her application was again denied in June, 1928, and reargument denied June 1929.
In 1925 Mrs. McIntyre brought suit for divorce in the same court, and upon the evidence taken at the trial, the complaint was dismissed in November, 1925. A second action for divorce was instituted in October, 1926, but apparently never was tried.
In 1914 McIntyre became a full branch pilot, and as such became entitled to a drawing account of $200 per month and a share of the net earnings of the Pilots Association. He received the following amounts for the years 1921-1932, inclusive (aside from his subsistence when on duty):
1921, $6,437.76. 1922, $7,611.70. 1923, $7,516.00. 1924, $7,674.59. 1925, $7,562.54. 1926, $8,253.34. 1927, $8,326.71. 1928, $83,652.25. 1929, $9,644.12. 1930, $8,498.81. 1931, $7,293.81. 1932, $6,032.42.
The amounts paid by the Pilots Association to full branch pilots for the years 1933 to 1935, inclusive, and hence the amounts which McIntyre would have received, had he lived, are:
1933, $6,032.08. 1934, $6,262.36. 1935, $6,328.08.
Upon attaining the age of 70, McIntyre would have retired at a salary of $175 per month.
It developed at the hearings that the daughter Elise was secretly married to Richard Y. Browne on April 6, 1935, although she continued to live with her mother until in or about September, 1936. It is conceded that she is now living with her husband. She will become of age on December 12, 1936.
Upon Elise attaining the age of 21 or upon her prior marriage, McIntyre would have the right to apply to the court for a modification of the separation decree in, order to terminate his liability for alimony for her support, maintenance, and education. The question then arises as to whether the court would modify the allowance in favor of Mrs. McIntyre. As noted above, the decree provides alimony of $1,800 a year to Mrs. McIntyre for herself and $1,800 a year for the support of Elise. Respondent argues that Mrs. McIntyre's claim should be limited to $1,800 a year,West Page 680whereas it is urged in behalf of Mrs. McIntyre that the court should and would award her at least the full $3,600 per year.
Each case is determined on its own facts and there is no absolute rule controlling the readjustment of the wife's alimony when children attain majority. In the case of Halsted v. Halsted,228 App. Div. 298,239 N.Y.S. 422(2d Dept. 1930), cited by respondent, a separation decree awarded $80 a month to the wife for the support of herself and twin children. At the time, the wife was earning $100 a month. When the twins reached their majority, the husband moved for a modification of the judgment so as to eliminate from the amount required to be paid, so much thereof as represented support for the then adult children. It appeared that the wife's earnings had increased to over $125 a month, whereas the husband contended that he had lost his position and that his new position yielded him but $70 a month. The court, with one judge dissenting, reduced the alimony to $40 a month. This case has not been cited since, and I do not believe the court intended to lay down any general rule.
The case of Looney v. Norfolk W. Ry. Co.,102 W. Va. 40,135 S.E. 262,137 S.E. 756, 48 A.L.R. 806, relied on by libelants' counsel, is not in point. That was an appeal from the denial of a motion to set aside a verdict in a suit under the Federal Employers' Liability Act. The defendant argued against the verdict on the theory that the decedent would have given his wife a smaller allowance after their children became of age. The court indicated that the wife might reasonably anticipate that her allowance would continue unabated, but found that it was not necessary to decide this point in order to sustain their conclusion to affirm the judgment. Apparently, the husband and wife were not separated, and no question of alimony was involved.
In this connection, Mrs. McIntyre testified that since 1928 McIntyre voluntarily gave her, in addition to the $300 per month, various amounts ($25, $35, and sometimes $50) aggregating from $500 to $1,000 a year, although she could furnish no record or itemized statement (58-61, 118-120). Elise corroborated her mother to some extent by testifying that her father sometimes gave her between $25 and $50 to give to her mother. She also said that when she was home during vacations she saw her father hand money to her mother (173). It is plausible that McIntyre gave his wife extra money to put a stop to her repeated motions for increased alimony.
It is also urged that consideration should be given to the likelihood of an improvement in shipping and hence an increase in the earnings of pilots.
In Briscoe v. U.S.65 F.2d 404, at page 406 (C.C.A.2), the court held that: "The commissioner was entitled to base his award in part on the deceased's prospects of increased earnings."
A wife is entitled to support according to her husband's earnings and station in life. An allowance of alimony to a wife of between one-third and one-half of her husband's earnings is not unreasonable nor unusual. Therefore, in my opinion, Mrs. McIntyre could reasonably anticipate that after the marriage or majority of Elise, the court would increase her alimony to at least $2,700 a year.
The original division of the alimony should not be given too much weight because the apportionment was made to meet the wishes of McIntyre and without any special consideration by the court. The trial minutes contain the following colloquy between the court and McIntyre:
"Q. Do you think $300 is excessive? A. Out of the $200 that I would have left, I have insurance expenses, tax expenses. But if the Court so decides that it would be divided half and half for herself and the child, I am willing.
"Q. That is, $150 for her and $150 for the child? A. Yes, sir."
The matter of the division was of no practical consequence, since Mrs. McIntyre was not required to account for her use of the money. Indeed, at the time of the separation decree, Elise was only nine years old and presumably would not require half of the total allowance.
At the separation trial, McIntyre also testified as follows:
"Q. What did you make last year — 1923? A. About $6,250 and this year (i. e., 1924) it is a little over $100 less."
The records of the Pilots Association indicate that his earnings for 1923 were $7,516 and for 1924 $7,674.59.
In fixing alimony, the court also considers the earnings of the wife. There is nothing in the record to show that Mrs. McIntyre has any income nor any prospect of employment.West Page 681
McIntyre was in good health and had an excellent record in the Pilots Association. In fixing an award, mortality tables may be consulted. Under the American Tables of Mortality, Mrs. McIntyre's expectancy was 28 years, and McIntyre's 21 years, at the date of his death. In the case of husband and wife, the proper method of making the calculations is upon their joint expectancy. Briscoe v. U.S. supra.
The award should be made on the basis of the present value of the pecuniary benefits. Chesapeake Ohio Railway Co. v. Kelly, supra.
A 4 per cent. interest rate was recently approved in this circuit. Briscoe v. U.S. supra.
According to the Combined or Actuaries Experience Table, the present worth of an annuity of $1 for a joint expectancy for the ages of 49 and 39 at 4 per cent. is $10.991. Multiplying $10.991 by $2,700 gives $29,675.70.
Mrs. McIntyre seeks an award of $75,000. Respondent contends that the award should not exceed $19,783.80 (the present value of $1,800 a year for the joint expectancy, at 4 per cent. interest). If the parties had not separated, an award of upwards of $50,000 might be in order, but "pecuniary loss" must necessarily take into consideration the fact of separation and the limitations of alimony. Indeed, on the basis of the full $3,600 a year alimony, the present value would be approximately $40,000, and hence the maximum that could be recovered.
For convenience of calculation, I have used the annual sum of $2,700 for the entire joint expectancy. I appreciate, of course, that the amount should be only $1,800 for the period from January 26, 1933, until Elise's marriage on April 6, 1935, but this is offset by the fact that almost four years have elapsed since the date of death, during which period Mrs. McIntyre has been deprived of the use of the money. Furthermore, mathematical computations are not conclusive. In Drowne v. Great Lakes Transit Corporation, supra, the court said: "We must take note of juries' award of compensation as some guide to control us in the decision of this question of fact. We note that with the increase in the cost of living, awards have been larger. The widow who must live without the aid of her husband is necessarily confronted with the increase in the cost of living and of her clothing. In the administration of justice, it is the purpose of the law to compensate the dependents as fully as money can for the loss sustained."
Under all the circumstances, in my opinion, an award of $32,500 to Mrs. McIntyre is a fair and just recovery for her pecuniary loss.
(2) Claim of Elise McIntyre Browne.
It is conceded that Elise is entitled to the sum of $3,950 based on the allowance of $1,800 in the separation decree, covering the period from January 26, 1933, when her father died, to April 6, 1935, when she married Browne. It is argued in her behalf that she has a claim for pecuniary expectations thereafter.
At the death of her father she was 17 years of age. She was educated in a private school (52), and then at the Mount St. Dominick Academy, a preparatory school located in Caldwell, N.J. (178). She was attending this school at the time of her father's death and was graduated in June, 1934. She received a diploma entitling her to enter a Catholic College without taking entrance examinations (179).
In July, 1934, she entered the McAllister School of Embalming, New York City, and received a diploma in April, 1935 (168). There she met Richard Y. Browne, who was taking the same course, and whom she married on April 6, 1935. Browne was then 20, although he gave his age as 21.
Before being eligible for an embalmer's license, a two-year apprenticeship is required under a licensed undertaker. This apprenticeship cannot be served by a person under 21 years of age. Browne is now serving his apprenticeship in the employ of his father, who is an undertaker, at Thompsonville, Conn., at a salary of $15 per week (169). At the time of the hearings Browne was not supporting Elise, who continued to live with her mother (169, 170). However, Elise is now living with her husband at Springfield, Mass. (235). She will be of age on December 12, 1936.
Elise testified that while she was at school, her father came to see her regularly once a week (189), and that from the time she was 13 years old until his death he gave her between $15 and $20 a month spending money (190, 191). In addition, he would give her $50 at Christmas (191). When she was at home with her mother during the summer vacation andWest Page 682the Christmas and Easter holidays, her father would often call to see her and take her out (170-174, 186). In the summer of 1930, Elise suffered a breakdown and McIntyre rented a bungalow for her and her mother at Flatbrookville, N. J., and he visited there and stayed overnight (121, 170, 171).
It thus appears that the relationship between father and daughter was a very close and affectionate one, and although, of course, he would be under no legal obligation to support her after her marriage or majority, it is not unreasonable to assume that he would have continued to give her small sums of money or presents. Indeed, were it not for her father's death, she might have gone to college and traveled, and not have married for several years.
Pecuniary loss is not dependent upon any "legal liability." Michigan Central R. Co. v. Vreeland, supra.
It is sufficient if the evidence shows a consistent purpose to contribute. The City of Rome (D.C.N.Y.)48 F.2d 333,338.
In my opinion, an award of $6,000 to Elise is warranted by the evidence.
(3) Claim of Inga Peterson.
Charles M. Peterson was born on April 2, 1903, and was 29 years of age when he died. He entered the employ of the United New York Pilots Benevolent Association in August, 1926, as a seaman at $15 per month and keep. From November, 1930, until the time of his death he was receiving $35 per month, out of which he gave his mother, Inga, the sum of $28.
It is contended in her behalf that her son's prospective increased earnings must be taken into consideration.
This necessitates an understanding of the operation of the Pilots Association. A young man desiring to become an apprentice, with the hope of advancement to deputy pilot and full branch pilot, files an application. If he has the necessary qualifications, he is employed as a seaman as soon as there is a vacancy. There is no time limit for his services as a seaman, but he must wait (sometimes over six years) until there is a vacancy in the ranks of apprentice. When he becomes an apprentice he must serve five years before he is eligible to become a deputy pilot. There are five grades of deputy pilot. Grades 1, 2, and 3 each require one year's service, and grades 4 and 5 each require two years' service, so that he must serve seven years as a deputy pilot before he can become a full branch pilot. This makes a minimum period of twelve years before an apprentice can hope to become a full branch pilot.
Seamen and apprentices have the same wage scale, namely:
Spare boy, $15 per month and keep.
First year $25 per month and keep.
Second year $30 per month and keep.
Third year and thereafter $35 per month and keep.
Boat-keeper, mate or captain $40 per month and keep.
The maximum for an apprentice is $40 per month. Deputy pilots receive drawing accounts of from $150 to $200 per month, plus a stated percentage of the net earnings of the association. Full branch pilots receive a drawing account of $200 per month, plus a percentage of the earnings until they reach the age of 70, at which time they retire on a pension of $175 per month. All vacancies are filled from the ranks, according to seniority.
Peterson was No. 2 on the waiting list to be promoted from seaman to apprentice, and would have been so promoted in May, 1934, at which time his immediate junior became an apprentice. Thus his highest salary from his five-year apprenticeship (1934 to 1939) would have been $35 or $40 a month.
Mrs. Peterson, at the time of her son's death, was 54 years old (born September 3, 1878). She is a widow, her husband having died in 1928.
She has four children now living, namely:
Reynold, aged 37, who lives with his wife and children.
Esther, age 32, who lives with her husband and children.
Martha, aged 27.
Edward, aged 25.
Mrs. Peterson and her husband were living separate and apart for several years prior to the latter's death, and during that time he contributed $7 a week toward her support. At the time of her son's death, Mrs. Peterson was working as a maid in the St. George Hotel at $11 a week. She was receiving no support from her married children, Reynold and Esther. At that time Martha was not working and had not been working for four years prior thereto. For the past three or four years Martha hasWest Page 683been employed as a switchboard operator by the Luckenbach Steamship Company, and pays $40 a month to her mother. However, Martha is engaged to be married.
Edward has been out of work for a year. At the time of Charles' death he was giving his mother $7 a week and later gave her $15 a week.
When her son died, Mrs. Peterson gave up her place at the St. George Hotel as she said that she was very much broken up for about a whole year. She has not tried to obtain employment since, but feels that it would be difficult for her to get work. Therefore her only present income is the $40 a month from Martha, which will probably terminate as soon as Martha marries. When Edward finds work, he will, of course, contribute as much as he can.
As stated above, Charles gave his mother $28 a month from November, 1930, until his death in January, 1933. Mrs. Peterson seeks an award of not less than $20,000. The respondent submits that the amount should not exceed $3,000.
Under the American Tables of Mortality, Mrs. Peterson's expectancy in 1933 was 18 years. The present worth of an annuity of $1 at 4 per cent. is $11.28325. On the assumption that Charles would continue to contribute the sum of $29 a month, or $336 a year, for the rest of his mother's life, the award would be approximately $3,800.
Charles could not have contributed more than $28 a month until 1939, as he could receive no increase of salary until he became a deputy pilot, and that would not be until 1939. Upon becoming a deputy pilot, he could reasonably anticipate earnings of at least $4,000 a year. (See schedule at pages 218, 219.)
Despite the opinion in Geary v. Metropolitan St. Ry. Co.,73 App. Div. 441,77 N.Y.S. 54, I have admitted evidence of the earnings of deputy pilots. That case involved the death of a fireman, and the court held that while the jury might consider the probability of the decedent's earning a greater income if he had lived, it was error to permit the plaintiff to show affirmatively the salaries which higher positions in the fire department command. The grounds assigned, namely, that the minds of the jurors might be confused by such evidence, and that there was not sufficient probability that the decedent would have advanced to those higher positions, do not apply here.
Captain Arnold, president of the Pilots Association, testified that Peterson was a well-built young man, of steady habits. While promotion is not entirely automatic, but depends upon periodic examinations by the Executive Committee of the Pilots Association and their recommendations to the State Board of Pilot Commissioners (Arnold, p. 80), there is no reason to suppose that Peterson would fail to make good. As Captain Arnold explained (22): "When a young man comes in the boats, he comes in the boats as an applicant apprentice with the sole idea that eventually he will become a licensed Sandy Hook Pilot. That is the reason why he is there."
Peterson had a public school education and later attended Delehanty Institute with the idea of becoming a policeman. He held a master's license from the Department of Commerce (Exhibit 6) and a First Aid Certificate (Exhibit 7).
I have no hesitancy in assuming that in due course of time Peterson would have become a deputy pilot. Nor is it reasonable to assume that an adult son, 29 years of age, unmarried, living home with his mother when not on duty, and giving her almost his entire salary, would not be disposed to meet the greater necessities of her advancing years in accordance with his ability to do so.
Accordingly, in my opinion, an award of $6,500 is not excessive.
(4) Claim of Selma, Strandberg.
Albert Rudolf Strandberg was born on September 6, 1907, and was 25 years of age when he died. He entered the employ of the Pilots Association on August 1, 1930, as a seaman at $15 per month and keep. From November, 1930, until the time of his death, he was receiving $35 per month, out of which he gave his mother, Selma, the sum of $25.
Mrs. Strandberg, at the time of her son's death, was 49, and her husband, Svante, was 59. They have a daughter, Mildred, who is now 22.
Mr. Strandberg has a small coal business, from which his net earnings were $1,894.56 for the calendar year 1933, $2,453.55 for 1934, and $2,308.89 for 1935. In the winter he is able to contribute $30 a week to the house, at other times between $20 and $25. They own the house in which they live at Port Richmond, Staten Island. It is assessed at $5,000 and has a $1,500 mortgage on it.West Page 684
Mildred started to work in January, 1936, for $15 a week, out of which she gives her mother $5.
Albert went to high school for a year and a half, and later worked for the Turner Construction Company at $40 a week before joining the Pilots Association. At the time of his death he was No. 6 on the waiting list to be promoted from seaman to apprentice, and would have been so promoted in September, 1935, at which time his immediate junior became an apprentice. Thus his highest salary from 1935 to 1940 would have been $35 or $40 a month.
The Strandbergs seek an award of not less than $12,000. The respondent submits that the amount should not exceed $2,000. As the contributions were made solely to Mrs. Strandberg, it would seem that she is the only proper claimant.
Under the American Tables of Mortality, Mrs. Strandberg's expectancy in 1933 was 21.63 years. The present worth of an annuity of $1 at 4 per cent. is $12,757.16. On the assumption that Albert would continue to contribute the sum of $25 a month, or $300 a year, for the rest of his mother's life, the award would be approximately $3,800.
Albert would not have contributed more than $25 a month until 1940, as he could receive no increase of salary until he became a deputy pilot and that would not be until 1940. Upon becoming a deputy pilot, he, like Peterson, could reasonably anticipate earnings of at least $4,000 a year. On the other hand, Strandberg was four years younger than Peterson and his parents' needs are not so pressing as in the case of Mrs. Peterson. Therefore, there is more likelihood that Strandberg might have married and that his contributions to his mother might not be increased to the same extent as in the Peterson case.
I believe an award of $5,000 to Mrs. Strandberg would be proper.
Summary.
The following awards are hereby made:
(1) To Clarence Faye, as ancillary administrator of the estate of Hugh McIntyre, deceased,
For the benefit of Charlotte McIntyre $32,500. For the benefit of Elise Louise Browne 6,000. --------- Total $38,500.
(2) To Inga Peterson, as administratrix of the estate of Charles M. Peterson, deceased, for her individual benefit, $6,500.
(3) To Svante Strandberg, as administrator of the estate of Albert Rudolf Strandberg, deceased, for the benefit of Selma Strandberg, $5,000.
It is conceded that interest cannot be recovered prior to the date of the final decree.
Hunt, Hill Betts, of New York City (John W. Crandall, of New York City, of counsel), for American Diamond Lines, Inc., and Black Diamond S. S. Corporation, and the Black Gull.
Critically the question to be determined is whether the commissioner had reasonable grounds for concluding that after the marriage or majority of Elise, daughter of Mrs. McIntyre, the State Supreme Court would have been likely to increase Mrs. McIntyre's alimony to $2,700 a year.
In seems reasonable to suppose that McIntyre could have made application to the Supreme Court, had he been living at the time that his daughter married or when she attained her majority, to have the alimony reduced. Is it within the bounds of reason that the Supreme Court in granting such motion would have given McIntyre the full benefit of the allowance of $1,800 a year paid theretofore to the daughter? Had such an allowance been made, his income would have been increased by the amount of $1,800 a year. Then his wife would have been in position to assert that by virtue of his increased income she was entitled to a share thereof.
It is not unusual to award the wife, as the commissioner reports, from one-third to one-half of the husband's income. Indeed,West Page 685in 1924, in which year the decree of separation was entered, his earnings were $7,674.59, and he voluntarily consented to a payment of $3,600 per year, which was substantially 50 per cent. of his earnings.
In adopting, therefore, a base of $2,700 a year for the wife after the daughter had married or attained her majority, the commissioner made a reasonable finding. He reports that he used this figure for the entire joint expectancy though he appreciated that the amount should be only $1,800 per year for the period from January 26, 1933, until the daughter's majority on April 6, 1935. The commissioner, however, was justified because for almost four years from the date of McIntyre's death she was without alimony.
I follow, therefore, the commissioner to the extent of an award to Mrs. McIntyre of $29,675.70, but disagree in an allowance above that amount. Such suggested addition is apparently based on the sporadic gifts made by McIntyre to his wife.
As thus modified the report will be confirmed and exceptions overruled. Settle order on notice.