265 Pa. 122 | Pa. | 1919
Opinion bt
In her statement of claim plaintiff alleges that on or about May 26, 1904, she entered into an agreement with Isaac McGill by which, in consideration of services to be rendered to him during the balance of his life, he agreed to will her all his property; that she faithfully performed those services until April, 1914, when, on account of the arduous nature thereof, her health became impaired, and she was sent to the State hospital at North Warren, Penna.; that on her return therefrom in the fall of 1915, he requested her to come back and continue rendering the services agreed upon, saying her absence in the hospital would in no way affect the contract he had made with her, and he would will all his property to her as agreed upon; that because thereof she did return, and continued to perform those services until his death on February 4, 1918, but he failed to carry out his part of the contract, and therefore she brought the present suit against the administrator of his estate.
At the trial the court below charged, at the request of defendant, that “before the plaintiff is entitled to recover in this case she must satisfy the jury by clear, positive, direct, unambiguous and credible evidence, that a contract was entered into, the terms of which are certain
There are six assignments of error, the first four relate to the refusal of defendant’s motion for judgment non obstante veredicto, to the entry of judgment on the verdict, to the refusal to direct a verdict for defendant because “there is not sufficient evidence in this case to show a breach of the contract,” and because “there is no proper or sufficient evidence from which the jury can find an amount due plaintiff.” The fifth assigns error in sustaining an objection to the following question: “Did you have a conversation with Ida shortly after the death of your brother Isaac McGill with reference to what she knew about his business”? The answer was: “She said she did not know anything about his business, that she didn’t — ” when an objection was interposed and sustained because the evidence was incompetent and immaterial. We agree with that ruling'. If plaintiff performed the services agreed upon, it made no difference what she knew or did not know about decedent’s business. Moreover, the answer was directly and fully responsive to the question, and anything additional would not have been responsive to it. The last assignment has no exception to support it, and will be disregarded.
As the first four assignments must all be dismissed unless defendant was entitled to binding instructions in his favor, the evidence favorable to plaintiff and every reasonable inference therefrom must be taken as true, and every unfavorable allegation and inference must be rejected. Viewed in this aspect the record discloses the following facts: Plaintiff, who was a niece of decedent, had been employed as housekeeper in her grandfather’s house for a period of twelve or fourteen years, and until
In the argument in this court defendant raises three questions: 1st. Was the alleged contract sufficiently proven? and under this head the only point made is: Was there sufficient evidence of her acceptance of the contract ? 2d. Was there a breach of the contract shown ? in view of the fact that there was no evidence decedent did not make a will as plaintiff alleged he agreed to do. 3d. Was there “sufficient evidence from which the jury can find an amount due plaintiff?” which may be dismissed without further consideration in view of the testimony above set forth as to the time covered by and the value of the services rendered.
It was not necessary to prove, as defendant seems to think, that plaintiff should formally write or state her
Nor does the fact that the plaintiff failed to prove decedent did not make a will leaving his entire estate to her, present any greater difficulty. It was admitted the register of wills of the county in which decedent was domiciled, had granted to defendant letters of general administration on decedent’s estate, and we have said this “being a judicial” act “cannot be attacked or avoided in a collateral proceeding”: Ziegler v. Storey, 220 Pa. 471, 476. Moreover it was the duty of the register before granting the letters to satisfy himself that decedent had left no valid will, and from the presumption of that duty performed prima facie no valid will existed: Kelly v. Creen, 53 Pa. 302; Murphy v. Chase, 103 Pa. 260. Besides, under the facts aforesaid and in view of the impossibility of certainly proving there was no will, and the reasonable possibility of proving it if there was one, the burden of proof of its existence, if one had been alleged in the pleadings, which it was not, was upon defendant who now affirms its possible existence. And, finally,
The judgment is affirmed.