264 Pa. 131 | Pa. | 1919
Opinion by
During the last illness of Frank Bean, the present decedent, his housekeeper saw upon his bureau a pocketbook and some keys belonging to him. With his consent she locked them in her trunk for safekeeping, stating that she would return them to him when he was all right. But he did not recover. On the day after the funeral she Opened the pocketbook, found in it two promissory notes, one for $565, signed by Henry J. Frankenfield to the order of decedent, and endorsed by decedent, “This note is void after my death”; the other for $3,000 signed by decedent to the order of Laura Frankenfield, wife of Henry J. Frankenfield; and handed them to said parties. The pocketbook, the rest of its contents, and the keys, she gave to the administrator.
When the account of the administrator was filed, Laura Frankenfield presented a claim “on this note ......as a creditor,” being the one for. $3,000, proved decedent’s signature and rested. The heirs at law then gave in evidence the above stated facts as to possession of the note, and that claimant, who was a niece of decedent’s wife, lived with them as a member of their family, and rested. Claimant then proved that she went to live with decedent when she was six years old, was treated as one of the family, and continued to reside with him until she was twenty-three years of age, during which time she helped in the house and store, and on the farm. The auditor finds that “while she resided with the decedent, the claimant attended school, was treated as one of the members of the family, being clothed by decedent”; and “helped to wait on the store, did housework, waited on her aunt while she was ill, and even assisted in the farm work” as any member of his family would. The above is all the admissible evidence in the case ; but even if we include that of Henry J. Frankenfield, husband of the claimant, despite his in competency as a witness (Sutherland v. Ross, 140 Pa. 379; Reap v. Dougher, 261 Pa. 23), and the objection made on.that ground; and
The auditor further says: “If there was nothing more to sustain this claim than the declarations of the decedent that Laura would be well provided for, or other loose expressions of like character, the evidence would clearly not justify the allowance of the claim, but those expressions, taken in conjunction with decedent’s own act in making the note, present a different question.” The auditor then asks a series of questions: (1) Why should decedent have cancelled the husband’s note and retained this one, “unless he intended that this note to the claimant should represent his acknowledgment of his indebtedness to her for her services?” (2) Why should he write it “if he did not intend to give the payee of the note an obligation which she could collect?” (3) If he did not intend this note as an acknowledgment “why would he have permitted the pocketbook containing this note to pass into the possession of Mrs. Krial and be taken charge of by her during his illness?” Deeming those questions unanswerable, and apparently not recognizing the vital distinction between an unexecuted intention and one that is executed, he allowed the claim because of the cases hereinafter considered. The court below stating the same facts, and reviewing the same cases, approved the auditor’s conclusion, decreed accordingly, and this appeal by decedent’s heirs and next of kin followed.
As the family relation existed between claimant and decedent, there is no presumption of a liability to pay for her services: Amey’s App., 49 Pa. 126; whether they were rendered in household or business affairs: Barhite’s App., 126 Pa. 404; and no recovery can be had therefor except upon clear and satisfactory evidence of an express
The cases relied upon by the claimant, the auditor and the court below, do not support the right to recover. In Toner v. Taggart, 5 Binney 490, the note was found among Toner’s papers after his death, but the money out of which it was paid was in Taggart’s possession, delivered to him by Toner who refused to take any obligation therefor, though he was studiously careful so to