164 A. 367 | Pa. Super. Ct. | 1932
Argued November 15, 1932. On October 1, 1925, the defendant, United Zion Home, gave B.F. Keiper, also known as Frank Keiper, the following paper:
"Oct. 1, 1925.
"Whereas Frank Keiper of the United Zion's Home of Lititz, Pa., has this day paid the sum of two thousand dollars to the United Zion Home of Lititz, Pa.
"Now therefore `The United Zion Home' agrees to pay to the said Frank Keiper the sum of fifty dollars every, first day of April, and also every first day of October, during the natural lifetime of the said Frank Keiper.
"And also in the event should the said Frank Keiper become in need any time for money for his maintenance, the United Zion Home agrees to pay him so much as they deem necessary from time to time for such maintenance, but no more than the original amount paid in, but what is paid shall be pro-rata deducted from the yearly payment.
Attest: United Zion Home H.G. Light J.H. Bicksler, Pres. (SEAL) M.H. Risser, Treas. (SEAL)"
When this paper was given, Keiper had been a guest or inmate of the Home for about twenty years, paying regularly and periodically for his board. *31
The $2,000 mentioned in the agreement was a balance then remaining of $2,500, which had been paid by him to the Home as follows, April 6, 1922, $1,000; April 11, 1923, $1,400; October 3, 1923, $100. On October 1, 1925 he asked for and received $500 of this money and was given the paper recited above. Keiper continued to live at the Home, paying his board, until some time shortly prior to April 1927, when he removed therefrom, and shortly thereafter asked the officers of the Home, specifically the Secretary and Manager, for the principal of the $2,000, but did not receive it. The semi-annual payments, however, were continued, as called for in the writing, the payment due April 1, 1928 having been made on March 21, 1928 to Ephrata National Bank, which appears to have been appointed guardian of Keiper in weak-minded proceedings instituted for his protection, as "Trustee of B.F. Keiper". This check, which was in the form of a voucher, contained on it the following writing: "March 21, 1928. To 6 mos. Interest on principal of $2,000, Due April 1, 1928, $50.
Approved by the President: J.H. Bicksler, President.
I hereby certify that the above account is correct:
H.G. Light, Secretary. Registered and approved for Payment:
M.H. Risser, Treasurer."
On the back the voucher had the following note:
"Charge to Amount Interest $50.00 ---------- ------- Total $50.00"
Keiper died on May 1, 1931 and this action was brought by his executors to recover the $2,000 with interest from April 1, 1931. The court gave binding instructions for the plaintiffs and refused binding instructions for the defendant, which offered no evidence.
The appellant contends that the paper evidencing *32
the receipt of the money contains no reservation of property or title to it in B.F. Keiper. This would be important if the paper contained any words of gift or grant concerning the money in favor of the Home, or any claim of title to or property in it by the Home; but it does not. It is not contended that Keiper owed the Home any money which was to be paid or satisfied out of the $2,000 paid it by him. The money was his, not the Home's. The paper contained no reference to any gift or donation to the Home by Keiper; the evidence falls far short of that required to sustain a gift: Smith's Est.,
The evidence in the case shows nothing beyond the receipt by the Home from Keiper, who was an inmate or guest, paying full board, of money belonging to him for which the Home was to pay him, semi-annually, a sum equivalent to 5% per annum; with the provision that as and when the principal sum was repaid to him from time to time, the semi-annual payments should be correspondingly reduced. In the absence of any *33 words showing or tending to show or asserting, a gift of the principal from Keiper to the Home, it was not necessary to make any disposition in the paper of the principal after his death. It was Keiper's money and would at his death belong to his estate.
Counsel for appellant raises the technical objection that no evidence was introduced at the trial that B.F. Keiper was dead and that the plaintiffs were the executors of his will, to whom letters testamentary had been duly issued. The facts were averred in the plaintiff's statement and were not sufficiently denied in the affidavit of defense either under the Practice Act of 1915 (P.L. 483) or its amendment of June 12, 1931, P.L. 557. The defendant could have verified the truth of the plaintiffs' averment by inquiry at the office of the Register of Wills of Lancaster County. The fact may then be regarded as admitted under the Practice Act and the Rules of Court of Lancaster County. (Rule XXIV, sec. 19). Appellant contends, however, under the authority of Buehler v. U.S. Fashion Plate Co.,
The assignments of error are overruled and the judgment is affirmed.