Appeal of Fross

Mr. Justice Clark

delivered the opinion of the court, April 7, 1884.

• The first five' assignments of error, in the first of these appeals, are-to the allowance of a- credit to the accountants for $741, paid by A. W. Blaine, as administrator of the estate of E..W. M. Blaine, deceased, to Mrs. Matilda M. Glass, formerly Matilda Harris, as per voucher No. 7.

It appears from the testimony, and by the report of the auditor, that Matilda Harris (now Matilda Glass), .in the year 1848, when a child ten or eleven years'of age, was taken into the family of E. W. M. Blaine, and there remained until the time of his death in 1858. She was not related to Mr. Blaine either by blood or marriage; her father was dead and her mother was poor; she was by Mr. Blaine during that time clothed, educated, maintained, and in all respects treated as a member of the family, and as his own child. The wife. of Mr. Blaine was an invalid, and died two or three years before the time of her husband’s death; during her illness, and after her decease, Matilda had charge of the house, and conducted the domestic affairs of the household.

Matilda Glass was called as a witness, under objection, to testify in behalf of the administrator, as to matters occurring between E. W. M. Blaine and herself, in relation to, and in support of, her claim for services, and also to prove payment of the claim by the administrator. She testified as follows: — ■ “ E. W. M. Blaine said he never could pay me for what I had done for him, services I had rendered him; that his wife wanted him to do by me the same as his other children; said he had left notes, amounting to $500, with A. W. Blaine, to be paid over to me when I wished it; they were against Harper & Co., or Harper 1 think; it was a week or two before his death.”

Q. “Do you know, personally, whether A. W. Blaine had been there in conversation with E. W. M. Blaine that same day ? ”

A. “He was there that morning.” ..... “All that I heard was that they were talking about the notes, and I heard E. W. M. Blaine say that he wanted me to have these notes, $500, when it was collected out of the notes.”

The first question which arises, is as to the competency of Matilda Glass to testify in support of her claim, which arose out of matters occurring in the lifetime of E. W. M. Blaine, to which he and the witness were the parties. As the claim of the administrator is prosecuted against the estate of a decedent, in an action or proceeding to which an administrator is a party, the case falls within the letter, as well as the spirit, of the proviso to the Act of 1869. She is not rendered competent by that Act, and therefore the question is one to be determined under the law as it stood prior to that statute.

Her claim had been paid by the administrator, and a voluntary payment, made without fraud or constraint, in ignorance of the law merely, cannot be recovered back. Natcher v. Natcher, 47 Pa. St., 496. It may be, therefore, that she was not incompetent on the ground of interest; but she was the original party to the claim, and the payment of it by the administrator gave him the right to a credit for it on her account, if it was a proper and just debt against the estate. The payment being voluntary, she was without responsibility for the event. She was incompetent, not on the ground of interest, but because, from principles of public policy, it is necessary to exclude her. Her receipt may not be considered a technical assignment of the claim to the administrator, but the case clearly falls within the principle announced in Graves v. Griffin, 7 Harris, 176; Bailey v. Knapp, Id., 192; Hatz v. Snyder, 2 Casey, 512, and other cases, that “whilst one of the parties to a contract in litigation is denied the privilege of testifying, the policy of the law is, to close the mouth of the other.”

If Matilda Glass had transferred her claim to the administrator, or to any other person, boná fide, and for full consideration paid, it would not be pretended that she could testify in support of it, whether that was the purpose of the assignment or not. The authorities upon this point are numerous, and it is unnecessary to refer to them; her incompetency in such case, however, would not result from her interest, but would rest upon principles of justice and equality, as well as of policy. We cannot distinguish between the effects of a technical assignment made, and of a transaction such as here occurred between Matilda Glass and A. W. Blaine, the administrator. In both instances the original holders of the claim, we may assume, receive full consideration, are exempt from liability to refund, are devoid of interest in the result, have acted bond fide, and without intention of becoming a witness, and the effect in both, if the rule were not as stated, would be, by a simple transfer of right, to enable one party to a transaction, to support the validity of his claim by his own testimony, whilst his adversary, whether dead or alive, is denied the exercise of the same right. It matters little how the transfer is effected; it may be by an assignment or an endorsement, by mere delivery or by payment, as in this case ; it is not the technical form of the transaction which governs or gives it effect. The witness was competent, of course, to prove payment, or any other matter not involving the original transaction. Where the reason of the rule ceases, the rule itself ceases. We are clearly of the opinion, therefore, that Matilda Glass was not a proper witness to support her own claim for the use and benefit of the administrator, and this practically disposes of this branch of the case, as the claim rests upon her testimony alone.

If, however, her testimony was competent for the purpose offered, we regard it as insufficient to establish any legal obligation against the estate of E. W. M. Blaine, deceased. Although, in general, proof of services rendered, or labor performed, by one person for another, raises an implied promise to pay, in this case the established relation of the parties repels the idea of a contract. Matilda Harris was a member of the family of Mr. Blaine; he was to her in loco parentis, she was treated as a child; the implication which would otherwise arise is thus fully rebutted. The transaction between her and the decedent, a week or two before liis death, cannot be regarded as a contract, as it lacks the essential element of a valid consideration. Although she was, as Mr. Blaine confessed, “ a dutiful child ” to him, and doubtless deserved not only his gratitude, but perhaps a more substantial reward, there was no legal obligation upon him to pay her anything; he owed her nothing more than he would have owed liis own child, under the same circumstances, and, as a general rule, an express promise cannot be supported by any consideration, wholly past and executed, from which the law could not imply a promise.

Nor can the claim be sustained as a gift inter vivos. A gift is a contract executed, and must be accompanied with such a delivery of possession as makes the disposal irrevocable ; the delivery must be according to the nature of the subject, and the donor must, in some form, relinquish not only the possession but all dominion over it. Where these essential requisites are complied with, the gift is perfect and irrevocable. After the decease of the alleged donor the transaction should be established by clear and satisfactory evidence.

Matilda Glass, the alleged donee, was at the time sui juris, and actually present, yet the notes were neither delivered into her personal control, nor were they assigned to her; indeed, the language used at the time was not such as necessarily to import a gift of the notes, as such. Mr. Blaine said “he had left notes, amounting to $500, with A. W. Blaine, to be paid over” to her when she wished it; he told A. W. Blaine “he wanted her to have the notes, $500, when it was collected out of the notes.” A. W. Blaine was then the custodian of the decedent’s papers, or some of them, and he subsequently became the administrator of his estate. The words of the decedent are altogether consistent with a mere agency, he “ had left ” or committed the notes to the custody of A. W. Blaine; if he should, at any time, change his mind, the notes were yet within his control. A. W. Blaine was the agent of the donor, and not a trustee for the donee. For the reasons already suggested, the claim could not be sustained as a donatio causa mortis.

It follows, therefore, that the payment to Matilda Glass was unauthorized, and the credit claimed as per voucher No. 7 must be disallowed. It would have been more agreeable for us to have been able to allow this claim, but the exceptants having raised the question as to the legal obligation of the estate, the responsibility rests with them; we pronounce upon it as a question of law. The abuses which are liable to result from any relaxation of these rules of law, requires a rigid adherence to their salutary provisions. There may be instances when they appear to operate harshly, but the wisdom and policy of their general application cannot be doubted. . •

The remaining assignments are without merit, and are not sustained. The note of Amos Gould did not appear upon the inventory, and under the evidence we think the auditor was justified in finding that it belonged to the administrator. The action of the court below, refusing to charge interest on the Hayes notes, and allowing credit for payments to G. W. Starr, for the Hamot heirs, was certainly correct. The accountant’s estate was also entitled to credit for commissions ; he may have been negligent, and his estate, perhaps, suffers in consequence of that, but he seems to have acted in good faith, without fraud or unfairness.

In the appeal of Dyer Loomis and W. E. Marvin, administrators of A. W. Blaine, deceased, the first assignment of error raises the question of the conclusiveness of the decree confirming the account filed by A. W. Blaine, in his lifetime, on the 2d May, 1864. An administration account, which does not purport to be final, and which, upon its face, does not embrace the whole estate, is, of course, not a final one. Chambers’ Appeal, 11 Pa. St., 438; but the confirmation of a merely partial account is a definitive decree, and is conclusive as to the matters embraced in it. Rhoads’ Appeal, 39 Pa. St., 186. Such an account cannot, of course, be conclusive as to matters not included in it; it is simply conclusive as to such matters as have been adjudicated under it. Shindel’s Appeal, 57 Pa. St., 43; Leslie’s Appeal, 63 Pa. St., 355; McLellan’s Appeal, 76 Pa. St., 231.

The account filed 2d May, 1864, purports on its face to be a “partial account” only. It is, therefore, only conclusive as to such matters as have been passed upon in it. The final account, afterwards filed and now under exceptions, plainly shows that the first was but partial, as it contains a number of charges for portions of the estate afterwards received. The first exception, in its general form, is therefore not sustained.

The second assignment, so far as-it relates to the note of Harper, Ross & Co., we think is sustained. The note was dated April 10, 1857, and was for $392.74. The accountant, in his partial settlement, charges himself with amounts received thereon, as follows: April 5, 1860, $100 ; April 29, 1864, $221.15.- The charge of $300, of the same date as the last item, being for the note unpaid, was for the uncollected balance. If this balance was wrong or incorrect, it should have been the subject of an exception to the confirmation of that account; the decree was conclusive as to all matters adjudicated under it, and this included the Harper, Ross & Co. note. So far as the assignment relates to the note of Harper & Co., it has no merit.

The fifth assignment is sustained. The administrator was not properly chargeable with the rents of the real estate; they constitute no part of his account. The administrate’, in taking charge of the realty and receiving the rents and incomes thereof, was merely the agent for the heirs. It is of no importance, whatever, that ho assumed to transact the business in his capacity as an administrator; lie was, in fact, but an agent. The liability of the administrator, and of his sureties, is, of course, limited to the matters appertaining to his office, and we cannot intermingle with these; transactions with which he had no concern, and in relation to which he had no duty to discharge.

We are of opinion, also, that the court erred in surcharging the accountant with the notes of John R. French & Co. In the inventory, these notes are marked “ doubtful.” Mr. J. S. Johnson, the only witness examined in relation thereto, states that he and E. W. M. Blaine had been partners; that at the dissolution they divided the notes, &c.; that he retained for himself one of the two notes of French & Co., and turned the other over to Blaine; that John R. French & Co., at that time, “ were not considered real sound; ” that when he went out of business French could not bo compelled to pay, and that although he received his own note, after French got his office at Washington, he “don’t know of any means by which French could have been compelled to pay after the dissolution.” The effect of this evidence was, we think, to shift the burden of proof upon the exceptants. It is said, “French is alive and within reach.” If so, it was rather the duty of the exceptants than the accountants, under all the circumstances of this case, to avail themselves of his evidence. The seventh assignment is therefore sustained. The remaining assignments are without merit, and are dismissed.

The decree is therefore reversed, and the record is remitted to the Orphans’ Court of Erie County, for further proceedings, in accordance with this opinion, the costs of the several appeals to be paid by the appellees respectively.