Citation Numbers: 111 Pa. 460, 1886 Pa. LEXIS 525
Judges: Clark, Gordon, Green, Mercur, Paxson, Sterrett, Trunkey
Filed Date: 2/15/1886
Status: Precedential
Modified Date: 11/13/2024
delivered the opinion of the Court, February 15th, 1886.
The claim of the appellant is based only upon the footing of an express contract. As she was the niece by marriage of the decedent, and was taken into his family when only six years of age, and was fed, clothed and maintained by the decedent as one of his family during all the period of her stay with him, nothing less than an express contract would be sufficient to sustain a recovery. The only direct evidence of such a contract is found in the testimony of Mrs. Dukes. The appellant being about the age of fourteen years, a conversa
While the literal meaning of the words of the coutract as testified to by Mrs. Dukes, leaves it in such a condition of uncertainty, an implied meaning might be reasoned out that the appellant was to stay with the decedent as long as he lived, because, according to the witness, he said she should have a good home as long as he lived, and at his death he would provide for her. But if such was the meaning of the parties a still more serious difficulty arises from the fact that the appellant never performed her part of such a contract. When she was about twenty-three years of age she married and left the decedent’s family and lived with her husband.
The case comes almost literally within the decision of this court in Pollock v. Ray, 4 Norris, 428. Thus on p. 432 we said: “If the declarations had been to the effect that if the plaintiff would remain with him until his death he would then do well by her, or pay her wages, there would be some plausibility in the contention that there was a mutual contract ; she to serve him until his death, and he either to provide for her by will or pay her wages. It might possibly have been sustained under the case of Thompson v. Stevens, 21 P. F. S., 161. This was not, however, pretended to have been the contract. Had she remained until his death it might perhaps have been implied. But in point of fact she left his service ten years before his death. There was no engagement on her part to remain a day. She might have left immediately, and her ease would have stood as strong on the evidence as it is now.”
In Graham v. Graham’s Ex’rs, 10 Cas., 475, we held that the parol contract of a decedent to give the plaintiff a certain portion of his estate in consideration of services rendered, even if capable of being enforced, can onljr be when clearly proved by direct and positive evidence, and where its terms are definite and certain. The testimony in that case was quite as express and positive as in this. As to the length of service it was very definite, but as to the compensation it was indefi
Claims of this nature against dead men’s estates, resting entirely in parol, based largely upon loose declarations, presented generally years after the services in question were rendered, and when the lips of the party principally interested are closed in death, require the closest and most careful scrutiny to prevent injustice being done. We cannot too often repeat the cautions we have so frequently uttered upon this subject, and we feel that,, the present occasion is one which demands both their repetition and their application.
The decree of the court below is affirmed, and the appeal is dismissed at the cost of the appellant.
Reynolds, Exrx. v. Williams, Exec. , 282 Pa. 148 ( 1924 )
Friese's Estate , 336 Pa. 241 ( 1939 )
Swieczkowski v. Sypniewski, Exr. , 294 Pa. 323 ( 1928 )
Craig's Estate , 298 Pa. 235 ( 1929 )
Calvert v. Eberly , 302 Pa. 152 ( 1930 )
In Re Estate of Edward D. Johnson , 108 Pa. Super. 526 ( 1933 )
Monson Estate , 160 Pa. Super. 631 ( 1947 )
Zuelch v. Droege , 1953 Minn. LEXIS 561 ( 1953 )