Robb's Appeal , 1 Pennyp. 436 ( 1881 )

Mr. Justice Sterrett

delivered the opinion of the court

It is contended that, on grounds of public policy, the widow of the decedent was incompetent to testify to the contract on which appellee’s claim for wages is based; that the disqualification incident to coverture continued after the death of her husband, and is not limited to what occurred in their confidential intercourse, but extends to all facts and transactions which came to her knowledge during their marital relations. While the. principle, thus broadly stated, has sometimes been recognized, the better and more generally received opinion is that the disqualification is restricted to communications of a confidential nature, and does not embrace ordinary business transactions and conversations in which others have participated. This appears to be the principle recognized in our own cases: Cornell v. Vanartsdalen, 4 Barr 364; Peiffer v. Lytle, 8 P. F. Smith 386. The Orphans’ Court, adhering to this view of the law, permitted the widow to testify to conversations between her husband, herself and the appellee, which resulted in a contract of hiring, in pursuance of which the latter entered the service of Mr. Iiobb in October 1869, and continued therein until his death on September 10th 1877. These conversations, as shown by the testimony, are not, in any proper sense of the term, confidential communications, and there was therefore no error in permitting the witness to testify.

From the evidence properly before him the learned judge found, among other things, that when the appellee first entered the service of the decedent, he agreed to pay her $3 per week, u but subsequently increased her wages to $3.50 per week. He paid her nothing, and no demand was made. The matter, however, was discussed, and the contract was distinctly recognized as in existence. She did not need the money, and he was allowed to have the use of it.” In the absence of any exception to the finding of these or any other facts in the case, it must be conclusively presumed that the appellee entered the service of the decedent under a contract for wages at $3, which was shortly afterwards increased to $3.50 per week; that while the existence of the contract relation was distinctly recognized, she neither demanded nor received any of her wages, but, for the reason stated, permitted the same to remain in the hands of her employer for his use and benefit. These facts necessarily led to the conclusion that the appellee’s claim against the estate exceeded the net balance for distribution, and in the absence of any other valid claim the whole fund was awarded to her, on account. Li other words the decree is based upon and fully sustained by the facts distinctly found by the auditing judge, and not excepted to or assigned for error. The findings of fact, upon which decrees, either in the Orphans’ Court or Court of Common Pleas, are based, are not reviewable here unless they are specially assigned as error.

Aside from the evidence of an express contract, which was found by the court, tile testimony, returned with the record but not printed in full by appellants, clearly shows that the services, rendered by the appellee from October 1869 to the death of Mr. Robb, were reasonably worth at least $3.50 per week. It was shown that, in addition to her general household duties, she did all the family washing, attended to the cows, and at times cleaned the stable, and rendered other services outside the ordinary work of a female domestic. The lowest estimate placed on the value of her services by any of the witnesses is $3.50 per week.

The complaint in the second assignment is that, “ The court erred in overruling the defence of the statute of limitations.” If in point of fact this was done, it would be error. tTpon the facts of the case, as disclosed by the testimony, the statute of limitations was undoubtedly a bar to so much of appellee’s claim as was due and payable more than six years’ prior to the death of the intestate. In other words, her right to recover was limited to the six years’ services immediately preceding his death, with the interest thereon from the time her weekly wages were due and payable. The court found that shortly after the original contract was made, her wages were increased to $3.50. At that rate her claim, including interest, would be about $100 more than the net balance for distribution. This was doubtless the reason why the court took no notice of the defence under the statute of limitations. It was apparent that her claim for that portion of her services not barred by the statute, computed, according to the terms of the contract, would exceed the fund for distribution, and therefore the question as to the bar of the statute became wholly immaterial.

There is nothing in any of the assignments of error that requires further notice.

Decree affirmed and appeal dismissed at the costs of the appellants.