39 Pa. Super. 212 | Pa. Super. Ct. | 1909
Opinion by
This action of ejectment was instituted in the court below under an amicable agreement of the parties, in pursuance of which Mercur Park was made the plaintiff in the issue and Sumner E. Park the defendant. Both parties to the record claimed title to the premises in dispute under Benjamin Park, their father.
The plaintiff, Mercur Park, claimed the premises by virtue of an alleged parol contract entered into between himself and his father before or about the year 1889, by the terms of which the plaintiff, who had just completed his education at a business college at Elmira, New York, and had been offered a desirable situation paying a good salary in the city of New York, was to decline the offer of that position and give up the idea of entering upon business life and return to the farm in Bradford county owned by his father, upon which his parents then resided, and work and manage the farm and take care of his parents so long as they lived; in consideration of which his father agreed to give him the entire farm, including a timber tract of thirty-two acres, which was distant about eighty rods from the main tract, separated by intervening land; the timber tract being specifically mentioned in the agreement, which provided that the plaintiff should take hold and enjoy all the land which his father had in Litchfield township, Bradford county, Pennsylvania. The plaintiff alleged that in pursuance of said contract he declined to accept the position in New York, abandoned the idea of engaging in commercial pursuits, removed to the farm
The plaintiff called many witnesses whose testimony was direct and clear as to the arrangement which existed between Benjamin Park and his son Mercur with regard to the homestead farm, including the timber lot in question, and what was done by the parties under that agreement. The principal witnesses called by the plaintiff to establish the agreement between himself and his father upon which he relied were his brother, W. D. Park, his sister, Mrs. E. L. Walker and his sister-in-law, Mrs. W. D. Park. These witnesses were not merely disinterested, for if they had any interest it was adverse to the right of the plaintiff. Mr. W. D. Park testified at considerable length, stating that Mercur Park, about the time he graduated from the commercial college at Elmira, had ah offer of a position in New York at a good salary and he wished to take it, that his father insisted upon his declining the position and going to live on the farm and work and handle it, that his father stated that he and his wife were getting old and could not take care of
If the testimony is believed, the jury was fully warranted in finding that the contract between Benjamin Park and the plaintiff was established in all its terms. The parties were brought face to face, and the evidence disclosed a complete contract made by them. It also authorized the finding that the plaintiff had entered into possession of the land and performed his part of the agreement. It clearly appears, if the witnesses are credible, that Benjamin Park had frequently admitted making the contract with his son and that in pursuance thereof had made a will devising the land to the plaintiff. This testimony is supplemented by a paper in evidence, purporting to be the last will of Benjamin Park, dated September 3, 1889, in which he devises "to my son Mercur Park, subject to the dower interest of my wife therein, and also subject to the life estate of my wife in the dwelling house in which I now reside, all lands situate in the Town of Litchfield, Bradford County, State of Pennsylvania, of which I now own or shall die seized. I also give and bequeath to my said son all my stock and farming utensils upon the same.” This paper was in proper form as a testamentary disposition of property. The description of the land, viz.: “all lands situate in the Town of Litchfield, Bradford County, State of Pennsylvania, of which I now own,” is the same as that used by the witnesses in their testimony as to what land Benjamin Park said was to pass under the agreement with his son Mercur, and there can be no question that it includes the tract of land here in dispute. We do not agree with counsel for appellant in their contention that the estate in the land devised by that will is different from that provided for by the parol contract. The parties to the parol contract are presumed to have known that Benjamin Park 'could not by will devise the land discharged of the interest of his wife therein,
Evidence as to the declarations of Benjamin Park, made in the absence of Mercur Park fifteen years after the testimony established that the parol agreement had been made and executed by the entry of the plaintiff into possession of the land and a like period after Benjamin Park had executed his will in pursuance of the agreement, was properly excluded; McLaughlin v. McLaughlin, 91 Pa. 462; Parry v. Parry, 130 Pa. 94; Wilson v. Anderson, 186 Pa. 531; Baldwin v. Stier, 191 Pa. 432.
The judgment is affirmed.