131 A. 378 | Pa. | 1925
Henry E. Lineaweaver died September 7, 1923, intestate, and was survived by his widow, Martha. For several years they had been separated and lived apart, support of the wife having been voluntarily furnished by the husband. A claim was presented by her to the administrator of the estate asking for an award of a certain sum alleged to be due by reason of a failure of the decedent to comply with a contract, said to have been made in 1915, agreeing that a stipulated sum should be paid monthly for her support, and a policy of insurance on his life carried to the amount of $25,000, so that provision for maintenance after his decease would be assured. The cash payments provided for were made until the time of his death, but the policy had been allowed to lapse, and was not in force when he died. The failure to comply with the alleged agreement, as to the latter feature, furnishes the basis for the present demand. After hearing and rehearing, an allowance was refused, on the ground that sufficient proof of the contract had not been presented, and, further, if made, lacked consideration. It was also first held that a recovery could not be had because the statute of limitations had intervened, but this position was not asserted in the last opinion filed. Mrs. Lineaweaver has appealed from the decree entered.
It is undoubtedly true that claims of the character here in question must be established by direct and positive proof (Humbert v. Colonial Trust Co.,
In the instant case, the evidence of the contract rested largely upon the testimony of Mr. Marshall, a reputable member of the Allegheny County Bar. In substance, he testified to calling on the decedent several times at the end of 1914, and the first half of 1915, at the solicitation of Mrs. Lineaweaver, who was dissatisfied with the amount being paid her for support. She had under consideration the institution of legal proceedings to secure an increased allowance, and the attorney so advised the husband. After conferences, the latter offered to continue the payment of the same sum as formerly given, and, so that provision would be made for her maintenance after his death, agreed to continue, for her use, a life insurance policy, in the sum of $25,000, then in force, and in which she was named as beneficiary. Upon counsel's demurring to the arrangement because of the possibility that future payment of premiums might not be made, and the policy therefore lapse, Lineaweaver agreed that he would keep the same effective until his death, and that insurance to this amount would then be payable to his wife. This understanding was satisfactory to counsel, and he advised, in writing, the acceptance of the terms, which the wife finally agreed to. In pursuance of the offer, the monthly allowances were made and confirmed by a subsequent statement to the *389 attorney by the husband, and were admittedly continued to the date of his death.
There is no suggestion that Marshall was not a competent, credible and disinterested witness. Nor is there a contradiction of the statements made by him, except as to his denial that certain receipts were shown to him in Lineaweaver's office by the stenographer, and her statement that the matter of insurance was not discussed at the interview testified to, though she admitted, at one point in her testimony, all that was then said might not have been heard. A careful examination of the record convinces us that the evidence largely relied on by the claimant was not in any way impeached. Further, a second disinterested witness testified to subsequent declarations by the decedent, which corroborated Mr. Marshall in his statement of the terms of the contract entered into. Later, Mrs. Lineaweaver learned that the policy had been transferred to another as trustee, and thereupon sent counsel to interview her husband, so that her interests might be protected, indicating her belief that such provision was to be made. No material evidence was offered by the estate, except proof that the monthly payments were made until the time of death, that the beneficiary in the policy had been changed, and the insurance subsequently allowed to lapse.
The learned court below was impressed with the merits of the claim of the wife, but refused an award, in the first instance, on the ground that the claim was barred by the statute of limitations, the alleged contract having been entered into in 1915, and the demand upon the administrator following the death in 1923, but this position was not maintained when the final adjudication was filed. In answer to that suggestion, it may be said there was no power in the wife to sue until it appeared that the agreement had been broken by the failure to have in force at death a policy to the amount of $25,000 for her benefit. Though the one in existence in 1915 was cancelled, yet a new contract of insurance could have been obtained, *390
for the fund was not to be available until that event occurred, and it was then the right of action accrued: Marsteller v. Marsteller,
It is further said that the contract in this case was not complete. The attorney, acting for the wife, conducted the negotiations with the husband, and secured the best settlement he believed to be possible. This he communicated in writing to the wife, and she agreed to accept, though, as far as the record shows, no formal notification of this fact was given. It is to be observed that the wife refrained from instituting proceedings for support, as had been threatened, and, in addition, accepted the monthly allowance specified by the terms of the contract until the time of death, though a larger sum had been demanded. "It is often said that notice of acceptance is necessary for the completion of a contract, but it is not true, and never has been true, as a general proposition, that, where an offeror requests an act in return for his promise, and the act is performed, that notice *391
to the offeror of the performance is necessary to create a contract": 1 Williston on Contracts 117. "An acceptance of an offer may be by act, as where an offer is made that the offeror will pay or do something else, if the offeree shall do a particular thing. In such a case, performance is the only thing needful to complete the agreement and to create a binding promise": 13 C. J. 275. The fulfillment of that which is stipulated for is the best proof of assent, and notice need not be given of acceptance, unless the circumstances are such that the one to be bound cannot inform himself by inquiry (Hoffman v. B. S. R. R. Co.,
But it is urged, there was no proof of consideration for the making of the contract. The authorities are uniform in holding that agreements to separate — made when this condition has arisen, or in expectation that it will immediately take place, — are binding, and will be enforced as against both parties, where fair and reasonable: Scott's Est.,
Again, it is said that sworn proof of the claim presented to the administrator negatived the existence of an understanding such as was attempted to be established. The statement, offered by defendant, set forth a promise to keep up the insurance at the time the wife joined with her husband in the execution of a deed for *392
certain property owned by him. The testimony at the hearing showed the arrangement to have been consummated in 1915, and the undertaking referred to in the paper filed with the personal representative indicated that there had been, at the time mentioned, an approval of the understanding entered into, and the giving of further assurance that the agreement made with Mr. Marshall would be carried out. It is to be noticed that the document presented, — sworn to, though not legally required: Hahnlin's App.,
As we view the record, the contract was sufficiently established by a disinterested and reputable witness, corroborated by the declarations of the decedent to another, and by the fact of compliance with the terms of payment *393 agreed upon, continuing during his lifetime. The promised provision for support after death was natural, and there was consideration for the making of it. The claimant was entitled to a fulfillment of the terms of the undertaking. Since the policy was permitted to lapse, her only recompense is an allowance for the loss sustained, and a money award in her favor, and this is hereby sanctioned.
The decree is reversed with a procedendo, the claim of appellant to be allowed; costs to be paid by the estate.