Bryant v. Bryant

• Decision Date: 07 January 1929
• Docket Number: 218
• Citation: 144 A. 904,295 Pa. 146
• Parties: Bryant, Appellant, v. Bryant et al
• Court: Pennsylvania Supreme Court

144 A. 904

295 Pa. 146

Bryant, Appellant, v. Bryant et al

No. 218

Supreme Court of Pennsylvania

January 7, 1929

Argued November 28, 1928

Appeal, No. 218, Jan. T., 1928, by defendant, from order of C.P. No. 5, Phila. Co., Dec. T., 1925, No. 10504, refusing to take off nonsuit, in case of Howard Bryant v. Mary H. Bryant et al. Affirmed.

Assumpsit for breach of contract. Before MARTIN, P.J.

The opinion of the Supreme Court states the facts.

Nonsuit refusal to take off. Plaintiff appealed.

Error assigned, inter alia, was order refusing to take off nonsuit quoting record.

The judgment is affirmed.

Frank F. Truscott, of Bell, Trinkle, Truscott & Bell, with him Samuel R. Lazowick and E. Clinton Rhodes, for appellant. -- Assuming that the paper dated January 15, 1925, is a written contract not coming collaterally into the case and one in issue between the parties, plaintiff had the right to show by parol evidence the true consideration: Cridge's Est., 289 Pa. 331.

The paper is not a writing sued upon in this case, but comes into the case collaterally and is not subject to the so-called parol evidence rule: Curtin v. Gas Co., 233 Pa. 397; Alexander v. Righter, 240 Pa. 22; Green v. Green, 255 Pa. 224; Reel v. Oravetz, 279 Pa. 147; Hanauer v. Surety Co., 279 Pa. 345; Garrison v. Salkind, 285 Pa. 265.

Defendants, in their affidavits of defense, admit that there was an additional oral understanding with respect to the subject-matter of the writing of January 15, 1925, and such an admission allows plaintiff to show what the true understanding was: Kerr v. McClure, 266 Pa. 103; Federal Sales Co. v. Farrell, 264 Pa. 149; O'Bara v. Bielecka, 279 Pa. 307; Ward v. Zeigler, 285 Pa. 557.

The paper is not between the parties to this suit and therefore is not subject to the so-called parol evidence rule: Simons & Sons v. Emery, 254 Pa. 569; Gill's Est., 268 Pa. 500; Roberts v. Cauffiel, 283 Pa. 64.

Under the settled law of this Commonwealth, if one of three joint obligors discharges his or her share of the joint obligation, by a payment to plaintiff, all three of the obligors are not thereby discharged: Burke v. Nobel, 48 Pa. 168; Schoch v. Miller, 10 Pa. 401; Greenwald v. Kaster, 86 Pa. 45.

C. J. Hepburn, with him M. Hampton Todd, for appellee. -- We respectfully submit that the case at bar is on all fours with, and is ruled by, Wagner v. Marcus, 288 Pa. 579.

The instrument is the sole evidence of the contract, as to all three of the defendants.

This is not a case of a separate composition with one of several joint debtors.

The instrument does not come collaterally into the case: Garrison v. Salkind, 285 Pa. 265.

There was no sufficient consideration: Logan v. Mathews, 6 Pa. 417; Huntingdon Co. v. Spyker, 274 Pa. 570; Kesler's Est., 143 Pa. 386.

Before MOSCHZISKER, C.J., FRAZER, WALLING, SIMPSON, KEPHART, SADLER and SCHAFFER, JJ.

OPINION

MR. JUSTICE SADLER:

William Bryant, a successful coal merchant of the City of Philadelphia, died on March 31, 1923, leaving a last will and testament, dated six days earlier. His actual conduct of the business had ceased in 1922 because of ill health, though from time to time he exercised some personal supervision. He was survived by a widow, Mary Bryant, whom he had married in 1877. By her first marriage, she had one child, Mrs. Lamb, and, with the daughter of the latter, Mrs. Du Sossoit, the four named resided together in the family home. The two brothers of the deceased, had long since been dead. One of them left to survive him a son, Howard, who for many years had been employed by his uncle at a small salary. He became estranged from the deceased, and entered into the service of a rival firm, and was engaged by it for some five years. In 1922 he returned to his former position at a salary of thirty dollars a week, and remained in the same capacity until his employer's death. By the will, the estate was devised and bequeathed to the widow, her daughter and grandchild, with provision for a life estate in a $75,000 fund established for the benefit of the nephew, Howard.

After the death of William Bryant and prior to his funeral, the stepdaughter, Mrs. Lamb, according to the plaintiff in this case, advised him of the trust fund created for his benefit. He expressed surprise, declaring that his uncle had told him he would never make a will. She stated in reply, if his story is to be believed, that if he would not try to break the testament, but aid in sustaining it, she, jointly with her mother and daughter, would make up the difference between "the $75,000 and what [he] would have gotten had there been no will." It is claimed that a like statement was separately made by the widow, Mrs. Bryant, as well as Mrs. Du Sossoit, the other defendants in the proceeding. At that time, the plaintiff had no reason to believe that there was any ground of contest of the will either on account of lack of capacity or because of the exercise of undue influence, knowing only that his uncle had been in bad health, and had stated to him that it was not his purpose to make any written disposition of his estate. He so declared at the hearing before the trial court in the proceeding now under review, stating that he acquired no information which would lead him to believe there was any reason for contest until 1925, after the present difficulty had arisen. Following the probate of the will, the children of the other deceased brother instituted a proceeding based on the alleged lack of testamentary capacity, but in this the plaintiff refused to join, and filed, under oath, an answer in the orphans' court averring the full competency of William Bryant to dispose of his estate. That litigation was subsequently compromised and the suit withdrawn.

Certain payments, gifts and loans were subsequently made to plaintiff by present defendants up to the time he called, as requested, at the office of the family attorney and executed the following paper: "Received, Philadelphia, January 15th, 1925, from Mary H. Bryant, widow of William Bryant, eleven thousand five hundred dollars which with thirteen thousand five hundred dollars heretofore paid by her to me makes in all the sum of twenty-five thousand dollars received from her and in consideration of which payments I hereby waive all right of appeal from the decree of the register of wills for the County of Philadelphia, admitting to probate the will of said William Bryant and the granting of letters testamentary thereon to the executors therein named, and I hereby ratify and confirm the same and agree to be bound thereby. And further, for the consideration aforesaid, I agree not to appeal from the said decree of probate, or in any way or manner contest the validity of said will." Howard then made no claim of the existence of any other contract, or that he was to receive any sum other than that then paid to him. This paper clearly sets forth his covenant not to contest the will, or to appeal from its probate, or in any way complain of its validity. There was no allegation that it was executed by reason of fraud, accident or mistake, and it is not only the written but the best evidence of any contract in relation to the will which was entered into.

The plaintiff subsequently demanded the payment of a larger sum, based on the net value of one-fourth of the estate, on the ground that the present defendants had, in June, 1923, promised to so reward him if he did not contest the will, or lend aid and comfort to those who might, which condition he claimed to have complied with. His demand for further compensation was refused, and he then brought this action in 1925 against the widow, her child and grandchild, averring a contract by which the three defendants had jointly obligated themselves to pay him the larger sum mentioned in consideration of his refusal to join in litigation over the will. No averment was made that he had any ground for believing in its invalidity, and, as noted, he knew of no reason for such complaint in 1923, and later so swore in the orphans' court proceeding instituted by other relatives.

His present demand was based on the oral conversations, above referred to, and, in connection therewith, he offered the written paper, which has been quoted in full, as evidence of the fact that there was an agreement to compensate him. He also testified that one of the joint obligors had advised him to sign the document of 1925, though the consideration named therein was for a less amount than claimed, by representing to him that an additional sum would be subsequently paid. This promise was alleged by him to have been made by Mrs Lamb, but it is not claimed that Mrs. Bryant and Mrs. Du Sossoit, the joint defendants, so agreed, or had knowledge of such an undertaking. He also declared that, upon the refusal of further demands for money, he then made investigation and discovered that evidence might have been secured to show lack of testamentary capacity on the part of the decedent, and thus have justified an attack upon the will. Two witnesses were called at the present trial to show the circumstances under which it was executed. One, a nurse, narrated facts from which it was sought to infer that William Bryant was mentally incompetent to execute the paper probated, but it is to be noticed that she was a witness thereto, and had previously sworn before the register that the decedent was of sound and disposing memory. A second attendant also testified to facts indicating that the will was prepared and executed because of requests of the defendants, but it is not claimed that they did more than urge that a will be made, without indicating the actual disposition testator should make of his property. If any influence was used, it was limited to the...