270 Pa. 288 | Pa. | 1921
Opinion by
In the court below, appellant presented a claim for $4,110, for boarding and nursing decedent from April 12,1912, to July 17, 1917, at $15 a week. The auditing judge disallowed the claim, the court in banc sustained him, and this appeal followed. Had it been rejected by the learned and very satisfactory judge (Judge Anderson) before whom the testimony was taken, our path .would be comparatively easy to tread-; but unfortunately he died, the adjudication was written by his successor, who did not see the witnesses, .and though he and his colleagues are experts in this class of cases, and therefore their decrees come to us with more than the usual presumption of correctness, still, as said in Mirkil v. Morgan, 134 Pa. 144, 155, “we are sensible we have equal advantages with [them] in arriving at the truth. In either case, we have to take the testimony as it appears in cold type, without the benefit of having the witnesses before us face to face.”
Despite this, appellant has a heavy burden to carry. She must show error in the ruling below, and though this load is not as heavy as it would have been had the auditing judge seen the witnesses and then decided against
Appellant’s burden is greatly increased by her failure to make claim until after the death of her alleged debt- or; and this becomes especially important since, by reason thereof, the first eighteen months of the claim was within the ban of the statute of limitations at the time it was presented at the audit (a matter she would hardly have permitted had she been really a creditor); and by the further fact that, during the last year and a half of decedent’s life, she did not live with appellant, who, though visiting decedent, is not shown to have made any claim. We said in Carpenter v. Hays, 153 Pa. 432, 434, and have since frequently repeated, “without variableness or shadow of turning” therefrom, that “Claims against a dead man’s estate, which might have been made against himself, while living, are always subjects of just suspicion, and our books, from Graham v. Graham, 34 Pa. 475, to Miller’s Est., 136 Pa. 239 (249), are full of expressions by this court of the necessity of strict requirement of proof and the firm control of juries in such cases.” And again (page 435), “The presumption grows stronger as each period of payment goes by. In the nature of things it is less potent against a claim for two or three months’ wages, than for two or three years. ......As said by our late Brother Clark in Gregory v. Com., 121 Pa. 611, ‘the presumption will gather strength with each succeeding year, and' "the evidence to overthrow it must, of course, be correspondingly increased.’ ” Experience has demonstrated not only the wisdom of these rules, but the necessity for even more strictly adhering to them, and we propose to use the light thus cast upon our pathway.
In this aspect, the testimony in the present case jnnst be reviewed,—and first that which is not disputed. It
One witness testified she heard decedent say to claimant : “Margaret, dear, I shall never forget you, I cannot do anything for you, but when I am dead and gone you will have something nice”; and again: “I heard Eliza say she was not giving her anything now, but at the time of her death Margaret will be taken care of.” These indefinite statements were made prior to September, 1912, when claimant’s husband died, and hence throw no light upon the question of payment during the long period decedent thereafter lived with claimant. Another witness, a niece of claimant, when asked whether or not decedent ever said anything as to payment for the services rendered by claimant, replied: “Yes, it was an open secret that Mrs. Lyons was in her will; she talked to everybody about it, in Mrs., Lyons’ presence and out of her presence,” and added, this .was said many times. When these statements were made does not appear; but the witness significantly added, when asked if decedent said anything about paying or not paying, it was “only mentioned in her will, she was to be paid later on, when she died.” Another witness testified, without fixing any date in regard to the conversation, and without being able to say whether or not claimant had been paid: “I did hear Eliza say when she would be down that Mrs. Lyons would be well paid for her trouble. ‘I know I am a lot of trouble to Margaret now, but she will get well
It is clear from the foregoing that the testimony does not meet the requirements in cases of this character, especially as claimant was present on but one occasion, when payment was spoken of, and in no instance does the evidence show the circumstances leading up to the statements or how they happened to be made. They are not clear or convincing in character, but, on the contrary, are indefinite and uncertain as to time, circumstances and meaning, and justified the statement of the court below that the evidence “was not only insufficient to rebut the presumption of periodic payments, but also
The decree of the court below is affirmed and the appeal is dismissed at the cost of appellant.