Knauss's Estate

Opinion by

Mr. Chief Justice Paxson,

This contention arises upon the will of Owen Knauss, deceased. The testator after providing for the payment of his just debts and funeral expenses, and making provision for his wife, Catharine, directs his executors to sell the residue of his estate, and divide the same into six equal parts or shares. He then proceeds: “ To my daughter, Emma Catharine, intermarried to Milton Durn, the one-sixth part thereof, less the amount due me by her husband, Milton Durn (judgment .note of $400), and, also, the amount claimed or may be claimed by her or them, as wages coming from her work and labor done, over and above the age of twenty-one years, may be added to her portion whenever the same may be recovered against the estate by due course of law. And I do order, and it is my will, that the said judgment note of $400, and the interest due thereon, shall be deducted from her share coming to her, also the balance paid by me on the John J. Woodring’s note, as security, dated Feb. 16, 1877, amounting to $32, together with the interest due thereon; and, also, the book account which I hold against her husband, Milton Durn, amounting to $93.63^, and the balance, after all said amounts be deducted from her share, to be paid to her by my said executors, and no more.”

The appellant claimed, before the auditor, for over four years services rendered her father after she was of age, at the rate of 82.25 per week. The auditor allowed her at the rate of $1.75 per week for the entire time, and awarded her the sum of $470.50. An exception having been filed in the orphans’ court to this claim, the learned judge below sustained said exception, upon the ground that the appellant could not have recovered “by due course of law” because there was no contract to pay for her services.

A considerable amount of learning has been wasted in this ease, in defining what is “ due course of law.” It is sufficient to say, for the purposes of this case, that the presentation of the claim to the orphans’ court, and its adjudication by that court, is “ due course of law.” It may be conceded that, had there been no reference to this claim in the will, it could not have been recovered in the orphans’ court, nor by a suit at law. There was no evidence, outside of the will itself, of a contract between the appellant and her father, that she was to be paid for her services. We regard the will, however, as a distinct recognition of such contract, and that she had performed the work and labor under it. But there was no recognition of the amount she was to be paid. Hence, the testator provided that her portion of the estate should be increased by whatever may be recovered against the estate by “ due course of law.” In other words, her legacy was increased by that amount. Any other construction of the will renders it insensible in this respect. It is inconceivable that the testator would have recognized this claim, and have directed its payment, unless he considered that the appellant had a valid claim for some amount. Just what amount was due he left to be determined by due process of law. This was his obvious meaning. The case is somewhat analogous to Sinclair’ Ap., 116 Pa. 816. There a testator in his will, made in 1885, provided: “ It is my will, and I do order, that the balance due my old creditors, whose claims were compromised, be paid in full.” He had failed in 1877, and in 1883 had made a compromise with his creditors. It was held that, under this provision, the creditors were entitled to be paid their original claims, with interest, treating the composition payments as partial payments at date when made. Justice Clark there said: “ When the testator directed that ‘ the balance due his old creditors, whose claims were compromised,’ should be paid, he, of course, did not mean the balance which was legally due to them, for that would give the provision no effect whatever. He meant that his executors should pay to them the balance which was justly due and ought to be paid to them respectively, although there was no legal obligation resting upon him for payment thereof, either debt or interest. It is a legacy, the amount of which, however, is to be computed upon the footing of his previous claims.”

We do not regard Geisinger’s Ap., 1 Mona. 600, and Hancock’s Ap., 112 Pa. 532, as applicable to the facts of this case. The gift to the appellant was a legacy, the amount of which was to be ascertained by a judicial proceeding.

The decree is reversed at the costs of the appellees; the report of the auditor is affirmed, and it is ordered that distribution be made in accordance therewith.