176 Pa. 387 | Pa. | 1896
Opinion by
This case belongs to the class of claims against a dead man’s estate which we have had occasion several times lately to say should be scrutinized closely and required to be proved by convincing evidence. The claim of J. R. Bibby was presented in a lump sum for $2,800, with only the general dates “ from about February, 1884 to June, 1891,” and for most varied and miscellaneous services, without any itemization, and without book entries or other writing in support of it. And this claim, such as it is, was not presented until more than a year after the death of the decedent, although in the meantime the claimant, who was indebted to the deceased, made a settlement with the administrators, which included the payment of several small notes due by him. This circumstance alone would be very weighty against the good faith of the claim were it not explained by the testimony of Harmon that the claimant was employed by the administrators about the business of the decedent after the latter’s death, and was promised by one of them, Douglass Hughes, that the mortgage on his property should be canceled, and he should be well paid for his services to the decedent besides. Without the clear testimony to this fact it would hardly be possible to sustain the claim in the face of the strong presumption against it. In regard to the latter subject the learned auditor reports that “ the fact that the claimant has presented so large a claim in a lumped item, covering a period of seven or eight years’ service, and such service being of so various a character, would of itself be sufficient upon which to reject this claim, were it not for the large amount of testimony given before the auditor, which direct, positive and convincing evi
The services were certainly proved, and the general value of them on a contract basis. But the proof of the contract itself is by no means so clear. We should have been as well satisfied if the auditor had put the services in the class of those rendered voluntarily and without even implied contract basis though with a hope and expectation of reward, or gratuity, which, however strong the moral obligation on the recipient, could not be enforced against him or his estate at law. The declarations of the decedent especially seem to point to the view on his part at least that the services gave rise to a claim on his gratitude but not on his purse. But the auditor on personal view and hearing of the witnesses has found there was a contract, and the court below has approved the finding. We are not prepared to say they were so clearly wrong that we should reverse their finding on a question of fact.
On one point however we are constrained to reverse. There was no sufficient evidence to escape the bar of the statute of limitations. The claim was for services of the domestic and menial class which are presumed to be paid at stated periods according to the custom of the time and neighborhood: Carpenter v. Hays, 153 Pa. 432. It would have to be reduced to a month or two, or a year at the utmost, were it not for the testimony of Mr. Rhawn whose acquaintance with the financial affairs of the decedent enabled him to say that the claimant had not been paid. But there is nothing in that testimony to carry the claimant’s right beyond six years. Nor is there anything in the declarations of the decedent as testified to by any of the witnesses to have that effect. None of them identify any debt or fix any amount except the one in which he said he would pay Bibby $5,000, and this was coupled with a similar promise to Mrs. Kostenbander, and both were so plainly mere expressions of grateful intention that they are without weight in the present connection. There is nothing in the case to show that Hughes if alive and sued for this claim could not set up the
Decree reversed and account to be restated in accordance-with this opinion.
