137 A. 728 | Pa. | 1927
Argued April 14, 1927. In January, 1923, the decedent, Eleanor Davies, died at her home in Scranton. She was a widow and childless. By her last will she gave her home, valued at five thousand dollars, and one thousand dollars to Mrs. Margaret Rees Best (herein called Margaret), and also gave certain specific bequests to others, amounting to four thousand dollars; as to the balance of her estate, being the major portion, she died intestate. After paying the specific legacies and expenses the executor's first partial account showed a net balance of $32,857.17 for distribution. This the auditing judge awarded to Margaret and from the orphans' court's decree affirming the same, Morris Rees and other collateral relatives brought these appeals. Hanna Davies, not a relative, but claiming as a creditor, also appealed from the decree rejecting her claim. These appeals are all from the same decree and will be disposed of in one opinion, first considering the award to Margaret. *583
The decedent and her husband, Henry S. Davies, were natives of Wales, but in early life located in Scranton, where by thrift and industry they accumulated a modest fortune. Being childless and sensing the approach of age they decided to adopt or at least take some girl into their home to be a comfort and assistance in their declining years and in the end take, or at least share, their estate. They preferred some one of their blood and so corresponded with Mrs. Margaret Rees and her husband John Rees, residing in Wales, who were relatives and had young daughters, expressing their desire. To further the project Mr. and Mrs. Davies visited Wales in 1896, but failed to accomplish their object. Mr. Davies, however, revisited Wales in 1907 and, with the approval of Mr. and Mrs. Rees, brought back with him their daughter, Margaret, then eleven years of age, who thenceforward was known as their (the Davies') foster daughter. Mr. Davies died in 1910 and, about that time, Margaret, who had completed a course at the graded school, found employment in a silk mill where she remained for some years, then worked as a domestic in private families and later, having taken a course in night school, was employed as a stenographer. Meantime she continued to reside with Mrs. Davies, when there, assisting about the work of the home, and usually gave the latter her wages. She married soon after the decedent's death and continues to reside in the Davies' home which was devised to her.
On her behalf it is contended that as an inducement to secure the consent of her parents, Mr. Davies promised them, in effect, to make her the heir of himself and wife, so that upon the death of the survivor she would have their property, and that later Mrs. Davies ratified the agreement. On a finding to that import the auditing judge and orphans' court awarded the balance for distribution to Margaret. Such a claim against a dead person's estate must be supported by clear and convincing evidence, establishing a definite contract. See Reynolds' *584
Exr. v. Williams' Exr.,
It is suggested for Margaret that her claim should be sustained on the ground of an agreement to will her the property. Unfortunately, there is no evidence in the record of such an agreement. There is some evidence that the decedent said she had or intended to will Margaret the property, but none that either she or her husband ever agreed to do so. In the absence of proof of an *586 agreement to devise, it is not necessary to discuss the measure of damages for breach thereof.
As there is no parol adoption in Pennsylvania (Carroll's Est.,
Hanna Davies, a married woman and neighbor of Eleanor Davies, but not a relative, presented her claim for ten thousand dollars on an alleged express contract, made in 1910, that she was to be paid that sum out of decedent's estate for services to be rendered by herself and her husband during the remainder of the decedent's life. Proof thereof was by Esther Smith, the sister of Hanna Davies, the essence of which, in the witness's own words, was as follows: "She [Eleanor Davies] came over to Hanna Davies and she asked Hanna Davies if she would do her work for her and attend to her business during her lifetime, and also if Dave Davies if [Hanna's husband] would do the fixing around her property or properties, what she would ask of him during her days. . . . . . She said if they would do that for her or if they would consent to do that for her she would pay them ten thousand dollars after her death. . . . . . They were perfectly satisfied and they said they would do it for her." This finds support in alleged loose declarations made by decedent to various witnesses, she being quoted as saying she had promised to pay Hanna Davies ten thousand dollars, or sometimes as saying she was intending to pay her that sum and at other times as saying she was going to pay her well for what she did for her. The proof left somewhat uncertain the nature of the *587
work and business which was to be done for the ten thousand dollars. There was evidence tending to show Hanna Davies did work for the decedent, including some sewing, mending, washing and occasionally some housework; also did some writing for decedent, who, although of good native ability, was unable to read or write; she could, however, count money and was not easily imposed upon. It appeared that the two women went shopping together and that Hanna occasionally gave the decedent some eatables and also meals. The evidence in reply tended strongly to discredit this claim. Decedent held a mortgage against Hanna Davies and her husband on which they made a payment subsequent to her death. The executor testified that, after he had qualified, Hanna came to him and said she had performed services for decedent of various kinds, for which she should be compensated, but made no claim of any contract for ten thousand dollars or other amount. While Hanna occasionally wrote a letter to Wales for decedent and sometimes wrote receipts for rent, the decedent having five tenants, yet the great majority of the latter's clerical work was done by Margaret and is in her handwriting. The evidence also indicated that the housework, washing, etc., was largely done by Margaret and others, not Hanna, while the fences around decedent's property, which the alleged contract seemed to require Hanna's husband to keep in repair, were found in an advanced stage of dilapidation. The alleged contract was so improbable (see Miller's Est.,
The decree awarding the fund for distribution to Margaret Rees Best is reversed and the orphans' court is directed to make distribution of the same to the decedent's next-of-kin according to the intestate laws of Pennsylvania, costs to be paid out of the estate. The decree refusing the claim of Hanna Davies is affirmed and her appeal is dismissed at the costs of appellant.
Mr. Justice FRAZER and Mr. Justice KEPHART dissented as to the disallowance of the claim of Margaret Rees Best.