In re Estate of Miller

• Decision Date: 06 October 1890
• Docket Number: 308
• Citation: 20 A. 796,136 Pa. 239
• Parties: ESTATE OF MAHLON MILLER, DECEASED
• Court: Pennsylvania Supreme Court

20 A. 796

136 Pa. 239

ESTATE OF MAHLON MILLER, DECEASED

No. 308

Supreme Court of Pennsylvania

October 6, 1890

Argued March 5, 1890

APPEAL BY DAVID MILLER ET AL. FROM THE ORPHANS' COURT OF BERKS COUNTY.

No. 308 January Term 1890, Sup. Ct.; court below, number and term not given.

On April 8, 1889, David and William Miller, administrators of the estate of Mahlon Miller, deceased, settled their first account in said estate, which on June 3, 1889, was called for audit before SCHWARTZ, P.J.

At the hearing, Israel Miller presented a claim against the estate for $5,000, upon an alleged contract with the decedent, for services rendered and to be rendered by the claimant. The testimony of witnesses called by the claimant tended to show that he and the decedent were not related; that they lived part of the time a half mile, and afterwards two and one half miles from each other; that the decedent sometimes boarded with the claimant, and the claimant sometimes brought provisions to the decedent; that the decedent at different times declared to other persons that the claimant had rendered service to him in the way of work and the use of horses and he owed the claimant $5,000 for his services, was going to give him that sum and had promised him to do so, in some instances stating that he was going to give him the $5,000 after his death. One witness, Augustus Fritz testified to a conversation, in his presence, between the decedent and the claimant, in the fall of 1886, in regard to the work that the claimant had done, in which the decedent asked the claimant if he would be satisfied with $5,000; that the claimant replied that he would, and the decedent then said, "I will give you the $5,000 if you are satisfied." There was testimony that some time in 1887 the decedent made a will in which he bequeathed $5,000 to the claimant, but about four or five months afterward he destroyed it, and died intestate, April 28, 1888. The testimony relied on to establish the claim is fully quoted in the opinion of the Supreme Court, infra.

After hearing and argument, an adjudication was filed as follows:

Counsel for Israel Miller presented a claim against the estate of $5,000, founding the same upon an express contract with the decedent for services rendered and to be rendered, horse hire, and for other causes and reasons rendered and furnished by the claimant to the decedent. The question for consideration is, is he entitled, under the evidence, to the $5,000, or only to the value of his services, horse hire etc.?

Our courts appear to have divided cases of this kind into two distinct classes. In cases where it is established by "direct and positive" testimony that the services done, the things given and supplied, were to be compensated by a fixed sum of money, or by any specified goods, or by the conveyance of certain lands, the measure of damages for the non-performance of the agreement is the amount of money promised to be paid, a sum of money equal to the value of the goods or the value of the lands. Bash v. Bash, 9 Pa 260, decides that where a son remains with his father after his majority, and upon an express contract that he would leave him his farm for the services at his death, the measure of damages for the non-performance is the value of the lands. McDowell v. Oyer, 21 Pa. 417, is to the same effect. Thompson v. Stevens, 71 Pa. 161, decides that where a decedent in his lifetime agrees with his servant to provide for her at his death, to the extent that she need not thereafter do any work for a living, the contract is to be literally fulfilled, and the measure of damages for the non-performance thereof is a sufficient sum of money to keep and maintain her in accordance with the terms of the contract. Snyder v. Castor, 4 Y. 353, is to the same effect. In all cases in which the evidence is less definite, direct and positive, as to the consideration, the rule of law is, that the damages for the breach of contract are the value of the services upon a quantum meruit: Graham v. Graham, 34 Pa. 475. The question here arises, under which of these classes does the case under consideration fall?

The facts submitted by the evidence are as follows: Augustus Fritz testified that "decedent told him in the fall of 1886 he would not pay Israel Miller for the things he was getting, but would give him $5,000 for what he got of him, but would not pay him in his lifetime. He further says that in Mahlon Miller's room, "I heard Mahlon and Israel speaking together about this matter, and Mahlon then said he would give Israel $5,000, and asked Israel if he would be satisfied with that, and Israel said he would." The same witness also says that Mahlon told him he had promised Israel $5,000 for services. Upon cross-examination, witness said that he, addressing Israel, asked, "if I give you $5,000 will you be satisfied? Then Israel replied, "if you give me $5,000 I will be satisfied," and that Mahlon answered that he would give him $5,000; and further said that the subject was broached by the decedent.

This testimony is strongly corroborated by Benjamin F. Smith, Edward Sheetz, Franklin James, Joseph H. Houck and I. C. Becker, all of whom testified that he told them he owed Israel Miller $5,000 for services rendered, horse hire, boarding, sending him victuals, and for good and kind acts done and shown him. Several of them also testified that he had admitted to them he had promised Israel Miller to pay him $5,000, after his death, for what he gave him and did for him.

This testimony, exclusive of that of Benjamin F. Smith, which is somewhat impeached, is direct and positive, strongly supported by admissions and declarations of the decedent. It clearly shows, beyond any doubt, that [the decedent had an express contract with the claimant to pay him $5,000, after his death, for such services as the claimant had or might render him, etc. The claimant accepted decedent's terms; that is, he did not ask for a settlement during his lifetime, and now looks for his $5,000 as per contract between them.]

The question of want of consideration is also raised. It is, however, too evident to admit of argument that claimant rendered service to the decedent, and that he was also otherwise indebted to him. The evidence does not disclose the amount of such indebtedness, but certainly shows a sufficient consideration to sustain an express contract.

In passing upon this question, it is proper to take into consideration the decedent's habits of life and characteristics. He was old, when he entered into this contract; peculiar, a bachelor, somewhat bitter towards some of his relatives, living at times by himself, doing his own cooking and housekeeping, and fond of money making. It is also fair to conclude from the evidence that he desired the friendship of the claimant to the end. Hence he dreaded a settlement with him; fearing a disagreement between them, and having use for him, he contracted in settlement of the claim for the payment of $5,000 after his death.

The court allows the entire claim of $5,000.

The foregoing adjudication was filed December 4, 1889, and confirmed nisi. No exceptions being filed thereto, the confirmation became absolute; whereupon the administrators, and William Miller, on behalf of himself and the other heirs of the decedent, took this appeal, specifying that the court erred:

1. In making the finding embraced in []

2. In awarding $5,000 to the claimant.

The decree of the court below is reversed at the cost of the appellee; and the record is remitted with instructions to strike out the allowance of $5,000 to Israel Miller from the distribution, and correct the account accordingly.

Mr. D. E. Schroeder and Mr. Jeremiah Hagenman, for the appellants:

1. The court below was unfortunate in its citation of authorities. Bash v. Bash, 9 Pa. 260, in so far as it appears to sustain the court, and McDowell v. Oyer, 21 Pa. 417, belong to the line of cases following Jack v. McKee, 9 Pa. 235, which are overruled in Hertzog v. Hertzog, 34 Pa. 418. A comparison of the testimony with the findings of the court will show great inaccuracies and unwarranted inferences and presumptions in the latter. There is no proper and sufficient evidence of any such agreement as the court finds, nor is it shown that the claimant continued to render services down to the decedent's death. The testimony of Fritz presents the only direct evidence of anything like an agreement, but it does not constitute clear and satisfactory proof of a contract between the parties, like the express contract found by the court: Hertzog v. Hertzog, 29 Pa. 465; 2 Bouv. Law Dict., 204; Kyle v. Wells, 17 Pa. 290.

2. Such a contract, as is alleged here, should be proved by direct and positive evidence, and its terms must be definite and clear: Hertzog v. Hertzog, 29 Pa. 465; Graham v. Graham, 34 Pa. 475; Hartman's App., 3 Gr. 276; Pollock v. Ray, 85 Pa. 428; Bash v. Bash, 9 Pa. 262; Thompson v. Stevens, 71 Pa. 161; Murray's Est., 24 W.N. 175. The indefiniteness of this alleged contract, as to the services to be compensated, prevents its enforcement: Walls' App., 111 Pa. 460. One who performs services for another in expectation of a legacy, cannot recover therefor: Little v. Dawson, 4 Dall. *111. It was unnecessary to file exceptions to the adjudication. The court below being a separate Orphans' Court, its adjudication itself is a definite decree from which an appeal lies: Rhoads's App., 39 Pa. 186.

Mr. John F. Smith, for the appellee:

1. No exceptions were filed in the lower court to its findings, and therefore this court is not obliged to review the testimony unless the justice of the case requires it: Hise's Est 5 W. 157; Irwin's App., 5 Wh. 577; nor, unless gross error has been committed: ...