Power v. Grogan

• Decision Date: 06 July 1911
• Docket Number: 68
• Citation: 232 Pa. 387,81 A. 416
• Parties: Power, Appellant, v. Grogan
• Court: Pennsylvania Supreme Court

81 A. 416

232 Pa. 387

Power, Appellant, v. Grogan

No. 68

Supreme Court of Pennsylvania

July 6, 1911

Argued March 27, 1911

Appeal, No. 68, Jan. T., 1911, by plaintiff, from judgment of C.P. No. 3, Phila. Co., Sept. T., 1906, No. 2,280, on verdict for defendant in case of William J. Power, receiver of the real and personal estate of John Loughran, deceased, v Catherine Grogan. Reversed.

Ejectment to try the title to house and lot at northeast corner of Fifteenth and Catherine streets, Philadelphia. Before McMICHAEL, P.J.

John Loughran died May 3, 1890, leaving a widow, Bridget, but no surviving issue. By his will he gave to her, after payment of debts and various legacies, all of his residuary estate "for life, it being my wish and will, however, that she shall use whatever of the principal of such residue as may be necessary for her proper maintenance and support." Upon her death he gave the residue to such Catholic charities as she might designate in her last will. The testator then provided that should his wife fail to designate charities to take the ultimate residuum, it should go to certain institutions specified by him. He appointed his wife executrix of his will and provided, "I do hereby authorize, empower and direct my said executrix to mortgage sell, transfer or convey any or all of my real estate whenever she may think proper."

The widow died March 29, 1902, leaving five or more alleged last wills under successive dates, each of which was claimed by the beneficiaries thereunder to be the only lawful will. The last in date of these wills became the subject of contest immediately after her death, which contest on July 14, 1909, reached a conclusion favorable to the will: Trainer v. McGarrity, 40 Pa.Super. 57. In June, 1906, when the issue devisavit vel non had been awaiting trial for several years, the present plaintiff, upon his own petition as the administrator c.t.a. of the estate of John Loughran, deceased, was appointed by the orphans' court receiver of all the assets of the said estate. The petition set forth that if the alleged will then in contest were rejected, the next prior will would immediately become the subject of a new contest, and so with each of the other wills. The petition further averred that Catherine Grogan, the defendant here, had entered into a transaction with the testator's widow, Bridget Loughran, when the latter was upwards of seventy years of age, whereby, for an expressed consideration of one dollar, the widow had undertaken to convey to the defendant the real estate in question, which was part of the estate of John Loughran, and that the defendant was in possession of and claimed the property in fee simple; that she was without means and would be unable to respond in mesne profits; that by reason of the pending will contest, and those in prospect, no action of ejectment could be brought for an indefinite period without the appointment of a receiver for that purpose. The petition prayed that a receiver be appointed to take possession of the real and personal property belonging to the estate of John Loughran. On July 19, 1906, the plaintiff, William J. Power, was appointed such receiver, and he thereupon instituted this action of ejectment.

At the first trial of the cause in the court below the plaintiff was nonsuited because he had not been expressly empowered by the orphans' court to institute the litigation, but on May 24, 1910, the orphans' court ratified and confirmed the act of the plaintiff in bringing the suit, and the nonsuit was taken off. When the case was again tried, the plaintiff proved title in John Loughran and rested. The defendant then introduced evidence to show that Bridget Loughran had conveyed the property to her in pursuance of an agreement to compensate her for nursing and caring for said Bridget Loughran so long as she lived. After rebuttal testimony, the issues were submitted to the jury and a verdict was rendered for the defendant. The plaintiff has appealed from the judgment entered upon that verdict.

The trial judge charged inter alia as follows:

"John Loughran, after he had made certain legacies, . . . made this provision: 'I give, bequeath and devise all the rest, . . . of my estate . . . to my wife, Bridget Loughran, for life, it being my wish and will, however, that she shall use whatever of the principal of such residue as may be necessary for her proper maintenance and support.' My construction of that clause is that it did not give to Bridget Loughran power to absolutely dispose of that property unless it was necessary for her maintenance and support. . . . She had not the right to arbitrarily dispose of the property. . . . Whether or not Bridget Loughran was justified in making provision for her support and maintenance to the end of her life, by employing some one to take care of her and keep her until the end of her life and agreeing to convey the property to her . . . will be a question of fact for you. There will be another question of fact for you to determine, -- did she make such a bargain. . . . If she, from motives of affection, or from any motive at all, simply gave this property to Catherine Grogan . . . she was exceeding her power under the will. Her husband . . . meant that she should have the property or the use of it for her life, and that she should use so much of it as was necessary for her maintenance and support." After referring to the testimony relating to the negotiations between the widow and the defendant concerning the bargain for the services to be rendered by the latter to the former and the subsequent conveyance of the property as alleged by the defendant in fulfillment of that bargain, the court went on to say, "Was that done in good faith? Was it the act and deed, was it the voluntary act, -- assuming that you come to the conclusion that it was necessary, that she thought it was necessary, and it was necessary for her support and maintenance, -- was it her free act and deed, or did Catherine Grogan, the younger woman, exercise such an influence on the mind of the older woman as to amount to a fraud? Or, did Catherine Grogan, -- and this you will have to determine, -- in furtherance of a selfish, -- I say no more than selfish, -- design to get hold of the woman's property, get her to deed the property to her? . . . . The question you will have to determine is, Was it a fair and equitable transaction? Or, did Catherine Grogan impose on the old woman? Did she impose her will on that old woman's will? Did she make a sharp bargain with the old woman, and use fraud to carry it out? . . . ." Then, after referring to the evidence in a general way and to the deed to the defendant, the court said, "That is all testimony for you to consider, first, as to whether it was necessary for her support and maintenance, and if so, whether the bargain was made as Catherine Grogan says it was made. And if it was made, then consider whether it was made under duress. . . . That is, under force which the superior will acting upon an inferior one exerts, which the strong, vigorous, healthy person has upon the sick and infirm; or, to put it in another way, whether there was fraud. Because if there was fraud, this deed should be swept aside." And, in answer to a point, the court again said, "Unless the jury find that it was necessary for the proper maintenance and support of Bridget Loughran, to make use of the property in question, by conveying the same away from the estate, they must find for the plaintiff."

Verdict and judgment for defendant. Plaintiff appealed.

Errors assigned were (1) overruling plaintiff's objection to testimony by the defendant regarding matters occurring between herself and Bridget Loughran before the latter's death; (2) excluding evidence of the value of the property in question; (3) excluding evidence of the value of the defendant's services to the widow, Bridget Loughran; (4) excluding evidence to show that another property enjoyed by the widow was purchased with moneys belonging to the estate of John Loughran; (5) refusal to strike out evidence offered by the defendant to establish the contract between herself and the widow; (6) refusal to allow a witness offered by the plaintiff to prove that the defendant had offered to pay her a money consideration if she would not take the witness stand against the latter; (7) exclusion of a question objected to as leading; (8) a portion of the charge in which the trial judge told the jury that the testimony which had been admitted concerning the defendant's experience and capacity as a nurse should only be considered by them in passing upon her credibility, and that "as to the exact amount of wages she got, I do not think it very important except in so far as it affects her credibility;" (9) refusal of binding instructions for the plaintiff; (10) refusal to charge that "the transaction between the defendant and Bridget Loughran is not shown to have been a fair and equitable one;" (11) affirming defendant's eighth point: "If the jury believe that the defendant, Catherine Grogan, at the request of the said Bridget Loughran and upon her promise to compensate defendant, went to live with the said Bridget Loughran, . . . and assisted, nursed and waited upon and attended her from December, 1900, to March, 1902, when Bridget Loughran died, during which time defendant received no wages therefor, and if you believe that said Bridget Loughran, in good faith and as an honest exercise of the discretion vested in her by her husband's will, deeded said property to Catherine Grogan, the defendant, in consideration of the said Catherine Grogan having come to live with her, and having assisted, nursed, waited upon and attended her prior to the date of the deed, and also in consideration of...