152 Pa. 377 | Pa. | 1893
Opinion by
The appellant, who is the .executor of the last will and testament of Elijah Wagner who died on the fifth of April, 1886, filed an account of his administration of the estate on the first of September, 1887. To this account Evora N. Smith, who is a granddaughter of the testator, and to whom he gave all his property, filed exceptions. The only exception which has any connection with this litigation is in the words and figures following, to wit: “ The executor has not charged himself with the amount of his indebtedness to said estate, consisting of cash in hand belonging to said estate, amounting to $1,125.” An auditor was appointed to pass upon the exceptions, and on the hearing before him the exceptant demanded and was allowed an issue to determine whether the accountant was indebted to the testator in the sum of one thousand and sixty dollars, with interest .thereon from the 29th of September, 1884. The principal questions for our consideration relate to rulings made on the trial of this issue, in which the exceptant was plaintiff and the accountant was defendant.
It appears that on the 29th of September, 1884, the testator held two notes of the appellant, amounting to the sum of $1,060, and the parties substituted for them an agreement by which the appellant, for that sum which he received in the surrender of the notes, agreed to furnish the testator while he lived “ with lodging, boarding and necessary clothing, and in sickness to cause him to be properly cared for.” The testator was to remain in his own house where the board, lodging, clothing and care contracted for were to be furnished. This agreement was in writing, signed by the parties and under seal. Its validity is not questioned, and by it the indebtedness represented by the surrendered notes was satisfied. Thereafter the appellant’s liability to the testator was upon the agreement and measured by its terms; and while the liability was clear the amount to be expended in discharge of it was from its nature necessarily uncertain.
We think this conclusion was erroneous. There was certainly no rescission of the agreement in the lifetime of the testator, and it was therefore in full force at his death. If the appellant had refused to comply with it, and in consequence of his refusal the testator had necessarily expended for board, lodging, clothing and proper care in sickness more than the sum which constituted the consideration of it, his legal representative could maintain an action on the agreement for the whole amount so expended. If the sum paid by the testator for these matters was less than the consideration of the agreement, the recovery would be limited to the amount so paid. In either case the liability of the appellant would be measured by the damage caused by his breach of the agreement. The liability, if there is any arising from the alleged non-performance in this case, existed at the death of the testator, and his legatee
It was held by the learned court below that the appellee and her husband were competent to testify to matters occurring in the lifetime of the testator, and that the appellant was not. In this there was no error. The appellant is excluded by clause (e) of sec. 5 of the act of May 28,1887, but the appellee is not disqualified by it. It is admitted that the ruling complained of is sustained by the letter of the act referred to, but it is contended that it is unfair and therefore contrary to the spirit of the law to hold that one party to the issue may testify and that the other shall not.
The act of 1887 is not a step backward; it is an advance in the line of competency and the removal of disqualifications founded on interest or policy. We cannot construe this act
The first, second, third and fourth specifications are overruled.
Judgment reversed.
See also the next case.