186 A. 187 | Pa. Super. Ct. | 1936
Argued March 10, 1936. This is an appeal from the decree of the orphans' court dismissing exceptions filed to the report of an auditor.
R. Philomena Byrne, a widow, died, testate, on January 26, 1933, aged 89 years. Letters testamentary were granted to the York National Bank and Trust Company, which filed a first and partial account showing a balance of $73,128.90 for distribution.
Philomena Shadle, a grandniece of the decedent, claimed all the estate, but pressed particularly her right to the personal property, under an alleged oral agreement entered into some time in March, 1930, whereby the decedent agreed to leave all her estate to the claimant if she would take care of her; and asserted *416 that the decedent did make a will the latter part of 1930, leaving all her property to her.
The auditor found that such an agreement had been made, but that no definite period was stipulated during which the claimant was to render services; that in pursuance thereof the claimant lived with the decedent from March, 1930, until April, 1931, when she was dismissed; that the claimant, who is not physically strong, was a companion to the decedent, did little actual work, and spent a portion of the time at her father's studio; that before she went to decedent's home, she was earning $10 a week in her father's employ. He found, also, that the evidence offered was insufficient to support the allegation that the decedent had made a will, wherein she gave the claimant all her estate. The decedent's last will was dated November 10, 1931, and contained no provision for the claimant.
The auditor concluded that the oral agreement is unenforceable under the Statute of Frauds (March 21, 1772, 1 Sm. L. p. 389) as to decedent's real estate, and that the appellant is not entitled to specific performance of the agreement as to the personal property, but he awarded her the sum of $560, covering a period of 56 weeks at $10 a week, as the value of services she rendered to the decedent on the faith of the agreement.
Exceptions filed to the auditor's report were dismissed by the court, and this appeal followed.
It is necessary to consider whether the evidence in support of the agreement is sufficient to meet the requirements of the Statute of Frauds. If it is not, the claimant is not entitled to the real estate: Breniman v. Breniman et al.,
The appellant insists that she has met the requirements of the statute in that particular, by showing that in 1930 the testatrix made a will, in which she gave her entire estate to the claimant. If the terms of the agreement had been put in writing in the form of a will, that would be deemed a contract within the statute. Brinker v. Brinker,
We must, therefore, determine whether the auditor was correct in finding that decedent did not make such a will. In an endeavor to prove the execution of a will, and its contents, the claimant called George E. Neff, Esq., who testified that he had prepared a will for the decedent in the latter part of 1930, and that, according to his recollection, she signed it, but he did not remember any of its provisions. A sister of the claimant testified that when she was at the decedent's in February, 1931, she saw a large envelope in a bureau drawer and the decedent stated to her: "That is my will for Philomena, leaving everything I have to her." The mother also testified as to having seen the same large envelope in this drawer and that the decedent said it was a will for Philomena. Mrs. John Channell, another witness, testified that the decedent had said to her: "I have a will made, that Philomena is to get this home and everything in it after my death."
But there was no evidence offered that anyone had actually read the will except Mr. Neff, and, as stated, he did not testify as to its contents. "To authorize *418
memoriter proof of a lost document or record, the witness must have read it, or otherwise have actual knowledge of it, and be able to speak at least to the substance of the contents": Richards' App.,
The appellant having clearly failed to prove a compliance with the Statute of Frauds, her claim to the decedent's real estate, or its value, cannot be sustained: Sorber v. Masters et al.,
Is the claimant entitled to a specific performance of the contract as to the personal estate? "If the contract is entire, and part is within the statute it is unenforceable as a whole, and no action can be maintained to enforce the part which would not have been affected by the statute if it had been separate and distinct from the other part": 25 R.C.L. p. 704. See, also, 27 C.J. p. 318, § 404. It is stated in the notes to Traiman v. Rappaport, 71 A.L.R. 475, on page 485, as follows: "Contracts to devise realty and bequeath personalty, or, in cases where the estate of the promisor consists at his death of both realty and personalty . . . . . . are, unless a contrary intention appears from the contract, or the consideration for the devise of real property is distinct and severable from that for the bequest of personal property, generally regarded by the court as entire, not severable and unenforceable as to the part relating to personalty." A number of cases are there cited in support of the general rule. See, *419
also, 13 C.J. p. 561, § 525; Hartley v. Decker,
Furthermore, a decree for specific performance is not a matter of right, but of grace, and rests within the sound discretion of the chancellor. A decree will not be entered where his conscience does not approve the transaction, or where the law side of the court affords, as here, an adequate and complete remedy: Brady's App.,
We have read Thompson v. Stevens,
A careful review of the exhaustive argument of appellant convinces us that this case was properly disposed of in the able report of the auditor, and that the exceptions thereto were properly dismissed by the learned court below.
Decree is affirmed, at appellant's costs.