279 Pa. 30 | Pa. | 1924
Opinion by
William J. Miller, of Pittsburgh, died March 7, 1919, having in 1908 made his last will as follows: “Pittsburgh, Pa. Being in sound mind I William J. Miller, hereby bequest all my personal and real estate including the money held in bank also all mortgages belonging to me, to my dear wife. To my mother Rebecca J. Miller of Ravenna, Ohio, I bequest her ten thousand dollars. $10,000 to mother. William J. Miller.” Testator’s widow, Hanna Miller, became administratrix c. t. a. of his estate, and as such filed a final account, the audit of which, made in October, 1920, showed a balance of personal estate for distribution amounting to $2,873.63; this sum came from money in bank and was then awarded to the widow as a specific legacy, under the terms of the will, leaving no personal estate to apply on the mother’s $10,000 bequest. Testator left unencumbered real estate of much greater value than the $10,000, and in October, 1921, testator’s mother, Rebecca J. Miller (herein called the petitioner), presented her petition to the orphans’ court averring that her legacy was a charge upon testator’s real estate and praying that it be so decreed and an order made for its payment,
“Witness Margaret Stotz.”
The transfer of the bank account was delayed by lack of proper certificates to satisfy the bank and then by Hanna Miller’s death. But in the spring of 1921 the same offer of compromise was renewed on behalf of the Hanna Miller estate and in furtherance of which petitioner came from her home in Ohio to Pittsburgh, where a meeting was held in the office of the attorney of the last named estate, at which the petitioner and her counsel were present. The latter advised his client not to accept the $2,100 in discharge of her legacy, as he thought it was a charge upon the real estate, while counsel for the Hanna Miller estate adhered to his previously expressed opinion that it was not. The petitioner, despite the advice of her counsel, decided to go on with the settlement and there executed a more formal release as follows: “I, Rebecca Miller, acknowl
“Witness: J. L. Trefalien, Jr.”
To protect the title of purchasers of parts of the William J. Miller real estate, this release was acknowledged and recorded. In addition to the $2,100, petitioner’s attorneys in Pennsylvania and Ohio were paid $400; she also received a $500 legacy bequeathed to her by Hanna Miller, all of which was paid by the latter’s estate. In 1922, the matter of charging the legacy upon the land was heard by the auditing judge, on petition, answer, replication and testimony, and he at first decreed a dismissal of the petition, holding the land not liable for the legacy. Exceptions thereto were sustained by the court in banc who held, in an opinion written by the auditing judge, that the land was charged with the legacy. He also held the releases executed by the petitioner invalid and further that she was entitled to the relief prayed for. Upon exceptions thereto the case was heard by the court in banc, consisting of three judges, and the two, who were not present at the hearing, joined in an opinion reversing the auditing judge (who dissented) and dismissing the petition; from which the petitioner, who has since died, brought this appeal.
A careful examination of this case leads us to the conclusion that it should be affirmed. The execution of the release is admitted and the mental competency of petitioner is unchallenged. The suggestion that she was unacquainted with the contents of the releases, especially the one executed in March, 1921, on which appellee relies, is not sustained by petitioner’s own testimony and is disproved by that of numerous witnesses.
Appellant was residing with her daughter-in-law, Hanna, who was administratrix of the William J. Miller estate, when the settlement was first discussed and agreed upon in October, 1920, and it is urged that a confidential relation existed between them; even so, that relation ended with Hanna’s death, while the final release wes executed over four months thereafter. There is not enough to justify the conclusion that a confidential relation existed between petitioner and the Schmidts; she was not related to them and they had no legal control over her or her property, and there is no pretense that she was feeble minded, while her own testimony shows she was not. Even if there was a confidential relation, the affirmative evidence clearly shows petitioner fully understood the terms of the settlement and agreed thereto. Petitioner was at her home in Ohio from October, 1920, to March, 1921, with a full opportunity to consult her counsel, for she had a lawyer there as well as in this State, and the final settlement was consummated after she had ample time and opportunity for consultation and deliberation; in which respect the case differs from those cited in her behalf. Petitioner was in her seventy-ninth year when she executed the release and was hard of hearing but certainly understood what took place at the final settlement, and, if, as she claims, she did not grasp what her lawyer there stated, she should have asked him to repeat it. Moreover, the evidence of six other witnesses, including two members of the bar in good standing, who were present, is to the effect that petitioner did understand what was said there in the office. The fact that she gave oral testimony at length in answer to questions, and in a straightforward manner at the hearing, negatives the claim of her inability to hear.
The findings of an auditing judge, who saw and heard the witnesses, while entitled to great weight, are not
It is a familiar rule that, to set aside a release like the one in question, the evidence must be clear, precise and indubitable. The meaning of these words is fully explained and the authorities supporting the rule cited in the opinion by the present Chief Justice in Ralston et ux. v. Phila. R. T. Co., 267 Pa. 257, and need not be here repeated. The opinion writer there quotes with approval the language of Judge Rice in Baranski v. Wilmsen, 56 Pa. Superior Ct. 153, that, “When the terms clear, precise and indubitable are used, in defining the requisite proof of a particular fact to be made out by oral testimony, it is meant that it shall be found that the witnesses are credible, that they distinctly remember the facts to which they testify, that they narrate the details exactly, and that their statements are true.” This is reaffirmed in Leonard v. Coleman, 273 Pa. 62, also in Morneweck v. Western & S. L. Ins. Co., 271 Pa. 17. Whether the evidence in such case meets the required standard that justifies its submission to a jury is a question of law. In harmony with this principle the court in banc, in the instant case, held the evidence insufficient to support the findings of the auditing judge.
Appellant calls attention to the rule that payment of a part of a liquidated indebtedness, presently due, will not discharge the whole. The rule is sound but inapplicable here, for this was the compromise of a doubtful
Fischer’s Est., 189 Pa. 179, relied upon by appellant, lacked the feature of the compromise of a doubtful claim and the release there was executed under a threat of violence. In Miskey’s App., 107 Pa. 611, also relied upon, the deed was executed without the knowledge or consent of the grantor’s attorney. These cases also differ from the present in other respects. Furthermore, the $2,100 was paid by the Hanna Miller estate and not by that of William J. Miller, and it is well settled that the payment of a sum less than the full amount by a third party will, when so understood, satisfy the claim: Fowler v. Smith, 153 Pa. 639, 645. If it is suggested that the Hanna Miller estate and that of William J. Miller was, in effect, one, then Rebecca J. Miller was clearly an incompetent witness as to matters occurring in the lifetime of Hanna Miller.
As to the effect of appellant’s failure to tender or return what she received in the settlement, we express no opinion.
The decree is affirmed at the costs of appellant’s estate.