171 Pa. Super. 321 | Pa. Super. Ct. | 1952
Opinion by
Appellant was trustee of an inter vivos trust created by his parents, octogenarians, under which he was to manage certain real estate therein conveyed to him for
Nursing services rendered by a child to his parents are presumably gratuitous. Payment for them can be made only upon a contract proven by clear, distinct and positive evidence. Mere loose declarations indicating the wish that recompense be given are not sufficient to prove a contract. Mack’s Estate, 278 Pa. 426, 123 A. 462; Caldwell v. Taylor, 276 Pa. 398, 120 A. 391; Brown v. McCurdy, 278 Pa. 19, 122 A. 169; Ulrich v. Arnold, 120 Pa. 170, 13 A. 831; Zimmerman v. Zimmerman, 129 Pa. 229, 18 A. 129; Myers Estate, 103 Pa. Superior Ct. 249, 157 A. 916.
To overcome the presumption and establish a contract appellant introduced into evidence two letters from his mother. One dated June 10, 1949, addressed to “Dear Martin”, follows: “Your father & I want you to come over and take care of us, we are sick. The estate will pay you. I cannot write any more as I am
Assuming that appellant’s mother was legally capable of binding the trust estate,
Moreover, and this is the pinch of the case, both father and mother were incapable of contracting with reference to the res of the trust estate. They had conveyed legal title thereof to appellant and he was charged with its management and control. He was empowered to expend the principal for “the support, maintenance and care” of his parents, and this phrase would have authorized employment of nurses. But it did not authorize him to employ himself as a nurse. He could not deal with himself. Noonan Estate, 361 Pa. 26, 63 A. 2d 80; Downing Estate, 162 Pa. Superior Ct. 354, 57 A. 2d 710, affirmed 359 Pa. 534, 59 A. 2d 903. He could not overcome the presumption that the services rendered to his parents were gratuitous by a contract made by himself as an individual with himself as a trustee. 54 Am. Jur., Trusts, §315; Restatement, Trusts, §170. The prohibition against self-dealing is absolute; and where a trustee violates it, good faith will not help him. Tracy v. Central Trust Co., 327 Pa. 77, 192 A. 869.
Appellant made no charge for commissions as trustee or for attorney’s fees
Decree affirmed, costs to be paid out of the estate.
On this point, appellant testified: “Q. Mr. Croissant, under the terms of this trust agreement which you were executing as trustee, did your mother have authority to bind the estate in any way? ... A. I don’t believe she did, no.”
Appellant is a member of the Bar of Allegheny County.