Burgess v. Burgess

• Citation: 109 Pa. St. 312,1 A. 167
• Parties: BURGESS v. BURGESS.
• Decision Date: 05 October 1885
• Court: Supreme Judicial Court of Maine (US)

1 A. 167

109 Pa. St. 312

BURGESS

v. BURGESS.¹

SUPREME COURT OF MAINE.

Filed October 5, 1885.

MERCUR, C. J., dissents.

Error to common pleas, Bradford county.

In 1869 George Terry made an arrangement with his son Eben to leave him a part of his farm, upon consideration that he would take care of him (George) and his wife the remainder of their lives. George accordingly made a will containing such a devise, but no evidence was produced that the parties ever repeated the agreement in each other's presence, or that it was ever witnessed in any way. Eben Terry died in 1879, and George executed another will, leaving to another son the lands before bequeathed to Eben. The administrator of Eben, on the death of George, brought this action of assumpsit against the administrator of George for sustenance afforded to George from 1869 to 1875, and improvements put upon the land. Verdict and judgment for plaintiff. Defendant then took this writ.

S. W. & Wm. Little, for plaintiff in error.

There was no express contract, and the son could not recover. Lynn v. Lynn, 29 Pa. St. 369; Smith v. Milligan, 43 Pa. St. 107; Duffey v. Duffey, 44 Pa. St. 399; Schoch v. Garrett, 69 Pa. St. 144.

B. M. Peck and D'A. Overton, for defendant in error.

The contract may be proved by indirect evidence. Brinker v. Brinker, 7 Pa. St. 53; Gary v. James, 4 Desaus. 185; Hertzog v. Hertzog, 29 Pa. St. 465; Hess' Estate, 13 Phila. 285.

CLARK, J. This action is brought to recover damages for the breach of an alleged contract to devise real estate. George Terry, in the year 1869, owned and resided upon the land in question. He was about 71 years of age, physically infirm, and therefore unable to carry on the work at the farm. His son Eben G. Terry, who was 29 years of age, and married, had from childhood lived with him, and for years had worked the farm for him. It is claimed by the plaintiff that in the year 1869 the old man agreed with Eben to devise to him a particular portion of the land, in consideration that Eben would maintain and care for him and his wife as long as they should each live. The first and leading question in the cause is whether or not the evidence submitted was sufficient to establish the contract alleged.

The law is well settled that between parent and child there can be no recovery for services or maintenance, unless upon proof of an express contract to pay therefor; and to establish such a contract requires the production of direct, clear, and positive evidence. This rule is especially applicable to the case of a son who has never left his father's family to do business on his own account, but remains with him after majority as before. When, however, services are rendered by a son to his father, upon an alleged parol contract of the father to convey lands to the son, even a stronger degree of proof is required to establish such a contract. The evidence must not only be direct, positive, express, and unambiguous, but the contracting parties must be brought face to face; the witnesses must have heard the bargain when it was made, or must have heard the parties repeat it in each other's presence. A contract is not to be inferred from the declarations of one of the parties only; every presumption is against the claimant in such a case, (Ackerman v. Fisher, 57 Pa. St. 457; Edwards v. Morgan, 100 Pa. St. 330; Miller's Appeal, Id 568;) and the same measure of proof requisite to establish a parol agreement between father and son to convey land in consideration of services rendered is required to establish a parol agreement of the father to compensate the service of his son by a devise of lands, the latter being in effect but an agreement to convey by will instead of deed. A contract to devise may in some instances be enforced by decree for specific execution, (Brinker v. Brinker, 7 Pa. St. 53;) or it may furnish ground for an action, in case of a breach, and the damages will be computed according to the same measure as if the action were for breach of a contract to convey.

The same policy of the law which demands the application of the rule in the case of a parol contract to convey would seem to demand its application in the enforcement of a parol contract to devise. That the law has heretofore been so understood appears from the language of this court in Miller's Appeal, supra, where Mr. Justice Trunkey, in defining the decree of proof necessary to establish a promise by a parent to pay for the service of his child, says: "The degree of proof to establish it cannot be the same in all cases; nor is the contract for the payment of money for services or goods subject to the same rules respecting its proof as are applied to oral contracts for the conveyance or devise of land by a a father to his son," etc. In the case at bar the evidence fails to disclose any express or positive contract; the contracting parties are at no time brought face to face; no witness heard the bargain made, or at any time heard either party repeat it in presence of the other. A will was written, it is true, but there is no evidence that ever Eben saw it, or knew of its execution, or that the father and the son had ever agreed upon its terms, or assumed the obligations therein written. The will was, of course, ambulatory; its provisions were liable to change at the mere pleasure of the testator, unless by contract he had obligated himself otherwise. The contract is, therefore, not proven by the will; its execution at the time was a fact of a corroboratory...