Lippincott's Estate

21 Pa. Super. 214 | Pa. Super. Ct. | 1902

Opinion by

William W. Porter, J.,

In addition to the reasons given by the court below for refusing the claim of the appellant, another appears. • Assuming that the claimant had shown an unconditional promise bjr the decedent to contribute $1,000 to the erection of a church building by the claimant corporation, no consideration was shown to support the promise. Consideration is as essential in the case of a promise to give to a charity as in any other. The maxim ex nudo facto non oritur actio applies: Reimensnyder v. Gans, 110 Pa. 17; Helfenstein’s Estate, 77 Pa. 331; Phipps v. Jones, 20 Pa. 264. Furthermore, the promise (even if assumed to be unconditional) was unsupported by proof that any other subscriptions were made by third parties or that anything was done by the church corporation upon the faith of the particular subscription made by the decedent. On the first point there is absolutely no proof. On the second the whole of the testimony is given by the pastor who procured the subscription. I-Ie says : “ I don’t recollect how many subscriptions we had, but a good many. Q. Was this church begun and completed upon the faith of these subscriptions? A. We would not have begun it if the subscriptions had not been made.” This general statement (which might well be construed to refer to subscriptions other than that of the decedent), does not sufficiently prove that the building of the church was commenced on the faith of the promise of the. decedent. It required more evidence than this to convert a bald promise without consideration, into an obligation enforceable on the ground of estoppel. The proof should have risen to the level of showing that the identical promise or subscription made by the decedent moved the church corporation at least in part, to the prosecution of the contemplated work of church building. See Reimensnyder v. Gans, supra. It is tobe observed that no officer of the church corporation was called to testify as to knowledge of the decedent’s promise on the part of the corporation, or that any corporate action was taken or obligation incurred on the faith of anything that the decedent had written or said. It must be concluded then that neither on the ground of a promise made for a consideration nor on the ground of estoppel can the promise of the decedent, given some years before her death, be now enforced against her estate.

This much has been said without reference to the peculiar character of the writing containing the promise. On its face no legal liability appears. It is a promise to subscribe to the building of the church. With this, however, is coupled a clear reservation by the promisor of the right to fix the time of payment. The paper, therefore, creates no more than a moral obligation: Nelson v. Von Bonnhorst, 29 Pa. 352; Singerly v. Thayer, 108 Pa. 291. To relieve the document from the effect of the reservation, the pastor of the church who procured the subscription says that (at a date not definitely fixed), the decedent said that “she would pay $250 at "each date and other sums within the year” 1897, the paper indicating that in November and December, 1896, the signer might make payments on account. Assuming that this testimony was admissible, and that it stripped the paper of its illusory character and converted it into an agreement to pay, the agreement as thus amended was not shown to have been made for a consideration, nor was it shown that, on the faith of it as amended, other subscriptions were made, or that on the faith of it the church construction was begun by the claimant corporation.

The decree of the court below must be and it hereby is affirmed.