Burr Estate , 381 Pa. 547 ( 1955 )

Opinion by

Mr. Justice Allen M. Stearne,

The appeal is from the allowance by an orphans’ court of a claim for nursing and housekeeping. The single question is whether or not claimant overcame the presumption of periodic payments. A majority of the court ruled that she did. One Judge dissented.

At the audit the issue was beclouded by the inapt preliminary statement of counsel for claimant concerning the nature of the claim. He stated that the claim was based upon quantum meruit. He did, however, refer to an alleged agreement. It is well settled that where a claim is made upon an express contract to pay a fixed sum, on failure to prove the contract, claimant may not recover on a quantum meruit: Witten v. Stout, 284 Pa. 410, 131 A. 360; Cramer v. McKinney, 355 Pa. 202, 204, 49 A. 2d 374; Bemis v. Van Pelt, 139 Pa. Superior Ct. 282, 11 A. 2d 499. An orphans’ court, however, is a court in equity within the limited sphere of its operations. While it acts with procedure in equitable form, it does not so do with equity’s technical nicety: Steffy and Shimp’s Appeal, 76 Pa. 94; McCaskey’s Estate, 307 Pa. 172, 178, 160 A. 707; Worthington’s Estate, 6 Pa. Superior Ct. 484. We have read the testimony with care. A contract was neither proved nor attempted to be established. The learned dissenting Judge accurately states in his opinion: “In the instant case, although counsel for the claimant stated that the services, for which the claimant seeks compensation, were rendered to the decedent pursuant to her undertaking under an express contract and his undertaking to compensate her by a devise in his will, there is no testimony in the record which proves that this contract existed. . . .” Judge Cox emphasized the issue in this case, viz.: a strong presumption of periodic payments which it was claimant’s duty, to overcome.

Claimant is Catherine Marshall. Her claim is summarized by President Judge Boyle in his opinion dismissing exceptions to the adjudication, viz.: “The claim ... is for services rendered as a nurse and housekeeper for the decedent from August 18, 1949, to April 3,1951. During this period the decedent suffered from a severe arthritic condition, arteriosclerosis, high blood pressure and tremors. He was an invalid. He was in pain continuously, unable to dress himself or walk without assistance. He drooled at the mouth and required constant attention. He had to be helped to and from the bathroom. He required enemas and massages. He weighed 185 pounds and had to be lifted and helped from his bed on account of his arthritic condition. The decedent lived alone. The claimant, Catherine Marshall, began to take care of him on August 18,1949. . . . In addition to the nursing services which Mrs. Marshall performed she also prepared and served the decedent’s meals, did all the washing for the household and kept the sickroom and the house neat and clean. . . .” It is unquestioned that the narrated services were performed by claimant and no attempt was made by appellants to prove actual payment. The single inquiry is, as above stated, whether or not claimant successfully overcame the strong presumption of periodic payments: Braden Estate, 363 Pa. 42, 68 A. 2d 734; Sanders Estate, 370 Pa. 208, 87 A. 2d 923, and the cases therein cited.

Decedent’s former attorney was permitted to testify without objection that decedent had told the attorney “[claimant] should not worry that [decedent] would take care of her”. Judge Boyle correctly wrote in his opinion: “Q. Did you [i.e. the lawyer-witness] personally have any conversations with Mr. Burr with regard to whether or not Mrs. Marshall was to be paid or was being paid or was in the future to be paid for ■her services? A. Well, at the very beginning — shortly after the will of Mary Bnrr was probated, Mr. Burr had decided to give Mrs. Marshall the house on Waite Street. . . . Q. Then you say about that time or shortly thereafter Mr. Burr wrote a will in which he left the Waite Street house to Mr. and Mrs. Marshall? A. That’s right. That was shortly after. It was while Mrs. Doherty was still there. She was here for the funeral. Q. She was here for the funeral? A. She was still in Pittsburgh at the time. She was there when this will was discussed. . . . Q. Well, I understand from your remarks now, that Mrs. Doherty, the niece, participated in the discussion with reference to the plans for that will, did she? A. She did. Q. Did Mr. Burr state what his reasons were for leaving the Waite Street property to.the Marshalls? A. I believe Mr. Burr stated, prior to Mary’s death, Mrs. Marshall came over and helped Mary and Frank, and in consideration of her services, or her coming over, he was leaving her that house.”

“Over the objection of counsel for the opponents of the claim Mr. Ruffennach [lawyer-witness] further testified: ‘Q. Did he ever say anything indicating as to whether Mrs. Marshall was being paid? A. He was giving her these properties from time to time.’ ”

“Thereafter the opponents of the claim moved to strike out all Mr. Ruffennach’s testimony relating to the,.proposed testamentary provision in favor of the claimant on the ground that the communications between- the -decedent-and the-witness as to the decedent’s will-were privileged. As to the testimony on Pages 12, 13, 14 and 15, the record shows that when Mr. Ruffennach discussed the will with the decedent Mrs. Doherty, a niece of the decedent, was present. A communication between attorney and client made in the presence of a third person is not privileged: Cridge’s Estate, 289 Pa. 331, 336. As to the remainder of the testimony on Pages 68 and 69 of the official notes of testimony there may be a question. But in similar circumstances in McCahan’s Estate No. 2, 221 Pa. 186, 190, counsel for the decedent, who had drawn an earlier will which was the basis of a claim of a niece, was held to be a competent witness over the objection of the other beneficiaries that the attorney’s knowledge, and therefore his testimony, was privileged, being founded upon a confidential relationship. See also Boyd v. Kilmer, 285 Pa. 533, 539, where a decedent’s attorney was permitted to testify in support of a deed which disinherited decedent’s daughters in favor of a stranger. The purpose intended to be served by Mr. Ruffennach’s testimony in the case at bar is to rebut the presumption of payment, thus aiding the claimant to discharge the burden of proof which the law imposes upon her. The decedent had told Mr. Buffennach that he was paying the claimant for her services by the. provision made for her in his will. This testimony was corroborated by the testimony of Dr. Baczkowski, the attending physician. ...” Nine other witnesses testified to hearing declarations of decedent to the effect that claimant would be provided for. Considering all the testimony, we are not prepared to accept the conclusion of the dissenting Judge that the rebutting testimony constituted merely “Loose, vague, indefinite statements made by a sick, lonely old man who appreciated the kindness of his employe, and stated to these witnesses he intended, at some future time, to make a gift to her”. On the contrary, we agree with the majority of the court below that this testimony, with all its necessary inferences, sufficiently established that claimant had not been paid periodically, but decedent intended to compensate her by a suitable testamentary provision.

The decree is affirmed at the cost of appellants.