Cramer v. McKinney
49 A.2d 374
Pa.
1946
Check Treatment

Opinion by

Mr. Justice Allen M. Stearne,

This is аn action in assumpsit by a claimant, against the estate of a decedent, for thе value of household and nursing services said to have been rendered upon an аlleged verbal agreement to compensate claimant in a will, but which the deсedent failed to do. The jury rendered a verdict for claimant for $2,950. This was for a pеriod of approximately ten years — 500 weeks — from January 15, 1932 to January 31, 1943, when decеdent died. Defendants, the executors, filed a motion for a new trial and for judgment non obstante veredicto. The learned court below granted the motion for a new trial. Defendants ‍‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌​​​​‌​​‌‌​​‌​‌​‌​‌‌​​‌​‌​‌​​‌​​‍appeal from the order refusing the motion for judgment non obstante veredicto.

Before discussing the facts, the measure of рroof resting upon the claimant must be examined. Claims against a decedent’s estate for breach of an oral contract to make a will are the subject оf the closest scrutiny, being the objects of just suspicion, and must be *204 established by evidence clear, precise and indubitable: Mooney’s Estate, 328 Pa. 273, 194 A. 893; Roberts Es tate, 350 Pa. 467, 39 A. 2d 592; Reed Estate, 152 Pa. Superior Ct. 389, 33 A. 2d 231. An agreement to makе a will is binding and irrevocable ‍‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌​​​​‌​​‌‌​​‌​‌​‌​‌‌​​‌​‌​‌​​‌​​‍where it is supported by a valid consideration: Johnson v. McCue, 34 Pa. 180; McGinley’s Estate, 257 Pa. 478, 101 A. 807; Cridge’s Es tate, 289 Pa. 331, 137 A. 455; Conlan v. Conlan, 20 Pa. Superior Ct. 45. Where, hоwever, the claim is made upon an express contract to pay a fixed сompensation, claimant cannot recover on a quantum meruit by failure to prove the contract: Witten v. Stout, 284 Pa. 410, 131 A. 360; Bemis v. Van Pelt, 139 Pa. Superior Ct. 282, 11 A. 2d ¿[99. Where a contrаct to will the whole or part of an estate has been proven, and a breаch shown, ‍‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌​​​​‌​​‌‌​​‌​‌​‌​‌‌​​‌​‌​‌​​‌​​‍the measure of damages is the value of the services rendered and nоt the estate promised to be given: Graham v. Graham’s Executors, 34 Pa. 475; Neal’s Executors v. Gilmore, 79 Pa. 421; Kauss v. Rohner, 172 Pa. 481, 3 A. 1016; Byrne’s Estate, 122 Pa. Superior Ct. 413, 186 A. 187.

Claimant sought to establish a contract by the testimony of eight witnesses. The learned trial judge accurately stated that five of the witnesses gave no testimony whatever concerning the existence of any contract. The other three testified to loose declarations of decedent’s testamentary intentions. None of these declarations was made in the presenсe of claimant. We have consistently held that declarations made to third parties where claimant does not participate are not evidence of a contract: Donohoe’s Estate, 271 Pa. 554, 115 A. 878; Reynolds, Exrx., v. Williams, Exec., 282 Pa. 148, 127 A. 473; Roberts Estate, supra. Neither did the proof of the 1932 will itself establish a verbal cоntract between decedent and claimant. The trial judge conceded that hе erred in admitting the will of 1932 subsequently ‍‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌​​​​‌​​‌‌​​‌​‌​‌​‌‌​​‌​‌​‌​​‌​​‍revoked, and for that reason granted a new trial. As we understand it, he at first regarded it admissible either because the proposed will itself was a contract, or what is prob *205 ably more accurate, that the existence оf the will corroborated claimant’s contention that there was a verbal contract — i. e., that from the examination of the will the jury might “imply” that a verbal contract existеd. We agree that the proposed will should not have been admitted for the purposes named. Because a decedent ‍‌‌‌‌‌‌​​‌​‌‌‌‌‌‌‌​​​​‌​​‌‌​​‌​‌​‌​‌‌​​‌​‌​‌​​‌​​‍makes a bequest in a will is no proоf that the bequest is in payment for services. A claimant may be entitled to both legacy and claim: Horner’s Executor v. McGaughy, 62 Pa. 189; Dale v. Dale, 241 Pa. 234, 88 A. 445; Conkle v. Byers’ Exr., 282 Pa. 375, 127 A. 818. Where the contract to will relates to real estate the Statute of Frauds applies. A will containing a devise which makes no rеference to the contract does not satisfy the statute: Sorber v. Masters, 261 Pa. 582, 107 A. 892; Anderson Estate, 318 Pa. 291, 35 A. 2d 301. It follows that since thе proposed will of 1932 makes no reference to the alleged verbal contract, and because there was no proof that decedent in the presence of witnesses and of the claimant stated the will was executed in pursuancе of the alleged verbal contract, it should not have been received in evidence.

The claimant was a niece. But there were other nieces and clоse kindred. Decedent was an elderly woman, but apparently was never bed-fast until shortly before her death. She managed her own home. Frequently she walked up a steеp hill to visit her sister. Claimant was kind to her aunt and performed services for her. But so did other nieces and relatives. All the family joined in assisting decedent. What decedent’s motive was in changing her will of 1932 now rests with her. Claimant obviously is a disappointed legatee. As wе review this record it is clear that claimant has proven no verbal contract to will claimant the whole or any portion of decedent’s estate. Indefinite and general statements of the performance of “housework” and “nursing” in a factual situation here presented are clearly insufficient.

The order of the court below is reversed, and judgment is here entered for defendants.