83 Pa. Super. 468 | Pa. Super. Ct. | 1924
Argued April 22, 1924. Plaintiff, administrator of Mary J. Laughlin, deceased, brought assumpsit to enforce the personal obligation imposed on defendant Robert L. Laughlin, by the will of Thomas Laughlin, deceased, in favor of decedent's widow, Mary J. Laughlin, for the period from February 1, 1917, to January 15, 1918, the time of her death. The will provides: "Second: I give, devise and bequeath to my beloved wife, Mary J. Laughlin, the house and lot in which I now reside, during her lifetime and at her decease to go to Robert L. Laughlin, and to be his absolutely and to hold him and his heirs forever, and further Robert L. Laughlin is to board and to take care of his mother, and my wife, Mary J. Laughlin, is to receive forty dollars ($40.00) each year for spending money to do with as she may see fit.
"Third: I give, devise and bequeath to my son, John Laughlin, the house and lot on which he now resides, to be his absolutely, and to hold him and his heirs forever. My son, John Laughlin, is to pay his share of the forty dollars to his mother, the same as Robert L. Laughlin, each to share alike in making payment."
Recovery was refused below on the ground that in a prior suit judgment was obtained for a period ending January 29, 1917.
Thomas Laughlin died May 29, 1915. The widow and the sons, Robert and John, elected to take under his will, and the sons paid the $40 a year "spending money" to the widow; Robert performed his obligation to "board *470
and take care of his mother" for only four weeks after testator's death; then she elected to change her residence, and because she refused to live with defendant and his son and his daughter-in-law, he declined to perform. On January 31, 1917, she brought suit to recover for board and care for a period of eighty-six weeks, ending January 29, 1917; before that suit was tried, she died and her administrator was substituted; we sustained the recovery:
The learned trial judge denied recovery for the reason thus stated by him: "We reached the conclusion that this contract was an entire contract, and that there could be but one recovery upon it...... She could recover but once under the contract in suit, and if she failed in her first action to claim all to which she was entitled, she cannot remedy that failure by bringing another action."
Within legal limits, parties may contract as they please, and the law will require performance, or payment; an apparent intention that the agreement is indivisible, will be enforced and but one suit permitted for the breach, as was the fact in decisions cited by appellee from other states interpreting bilateral contracts for support. But we have now to consider a unilateral obligation, imposed by a testator, and our first inquiry must be, what was his intention as expressed in his will, considered in the light of the attending circumstances. When he executed the will in 1913, testator's household consisted of himself, his wife, and his son, the defendant; when he died in 1915, defendant's son and daughter-in-law also lived with them; the widow was then eighty-two years old, and the particular object of his bounty; she was in poor health; in need of care, as the record in the first case disclosed, varying in degree at different times. Testator intended a comprehensive provision for his widow during the remainder of her life according to her reasonable necessities. If she left the homestead, as she *471
might, (Steele's App.,
As defendant elected to take under the will, he must, of course, perform the obligation imposed by the will; it was a personal obligation: Wingett v. Bell,
There is neither difficulty nor hardship in requiring defendant to respond to suit for the two periods for which he was summoned; a common illustration is the periodical recovery for wages on an annual employment *472
at wages payable periodically: Stradley v. Cement Co.,
Judgment reversed and a new trial awarded.
