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IRVINE ESTATE (11/25/52)

November 25, 1952


Appeal, No. 4, March T., 1952, from decree of Orphans' Court of Washington County, Feb. T., 1951, No. 38, in Estate of Agnes Irvine, deceased. Decree affirmed.


Clarence B. Nixon, Jr., for appellant.

William R. Dennison, Jr., for appellee.

Before Drew, C.j., Stern, Stearne, Jones, Bell, Chidsey and Musmanno, JJ.

Author: Jones

[ 372 Pa. Page 111]


This is an appeal from a decree of the Orphans' Court of Washington County awarding to Agnes Tarr and Edward E. Tarr (husband and wife) the sum of $3,213.82 from the estate of Agnes Irvine, deceased, for room, board and laundry supplied the decedent in her lifetime by the Tarrs which she accepted. The award was limited to the period of time permitted a claimant by the statute of limitations. The appellant is Alice Lipps, a niece of the decedent and her sole heir and next of kin.

[ 372 Pa. Page 112]

The appellant contends that the proofs adduced by the claimants were neither the quantity nor quality required to establish their claim, that they failed to overcome the presumption of payment and that they also failed to rebut the presumption of satisfaction. What the evidence did prove, qua facts, is clear and precise enough. The question involved is as to the legal sufficiency of the proofs to imply a promise to pay. No departure from the long and well established rules of law relative to claims against decedents' estates, resting in parol, is either suggested or effected by the result reached by the learned court below.

The auditing judge specifically found, and the evidence supports the findings, (1) that the claimants furnished the decedent with board, room and laundry continuously over a period of approximately ten years prior to her death and (2) that such services were reasonably worth $12 a week. In addition to these specific findings, the following facts are established by the adjudication of the auditing judge which was confirmed by the court en banc.

The decedent, a widow, went to live in the home of the Tarrs around 1938 and continued to live there without interruption until her death on May 2, 1948. She was not related to the Tarrs either by blood or marriage. She had the exclusive use of a room in the Tarr home as her bedroom and also had the freedom and use of the downstairs which included a bath room. Her meals, which the Tarrs supplied, she ate at their table. She was 78 years old at the time of her death and, during all of the time she lived with the Tarrs with the exception of a few weeks, she was able to move around the house, tidy up her own room and occasionally help with the dishes and cooking. Her laundry work was done by Mrs. Tarr.

[ 372 Pa. Page 113]

The decedent owned a lot of ground in Washington, Pa., improved with a two-story dwelling which, after her death, was sold by her administrator for the payment of debts for the sum of $4,575. She left personalty of a total value of $42. Her only income, while she lived with the Tarrs, was $20 per month which she received as rent for her house. Out of that, she took care of her clothing, paid for the upkeep and taxes on her real estate and gave the Tarrs $3 a month. She wished not to convert her real estate in her lifetime, telling a friend (an almost daily visitor), who was a disinterested witness, that she paid the Tarrs "$3.00 a month for her room rent, and it was not enough," but that, if she sold her property, by the time "... she paid Agnes and Ed [the claimants] she wouldn't have anything to come and go on at all." She told another witness substantially the same thing.

As was said in Gibb's Estate, 266 Pa. 485, 487, 110 A. 236, "Ordinarily, an implied promise exists to pay for services rendered and accepted, and the burden is on the person denying liability to show no debt was, in fact, intended." This rule has long been recognized and followed by the courts of this State. In Miller's Appeal, 100 Pa. 568, 570-1, it was said that, "Nothing is better settled than that the performance and receipt of services, or the furnishing of board, raises an implied assumpsit by the one who receives to compensate the other...." Such is the legal situation which the established facts in this case import. There was no relationship between the claimants and the decedent to negative the legal implication that the services would be paid for. Contrary to the statement contained in the appellant's brief, there is not a word of competent testimony in the record to show that Mrs. Tarr in her childhood had spent any time in the home of Mrs. Irvine or under her care. The suggestion in

[ 372 Pa. Page 114]

    such regard emanates from avowed hearsay not shown to have been uttered in the hearing of Mrs. Tarr who, incidentally, was excluded as a witness upon objection to her competency.

There is another legal presumption, however, that services so furnished and accepted were paid for periodically. See Brown v. McCurdy, 278 Pa. 19, 23, 122 A. 169; Winfield v. Beaver Trust Company, 229 Pa. 530, 532, 79 A. 138; and Dowman Estate, 156 Pa. Superior Ct. 655, 658, 41 A.2d 339. But, the learned court below concluded, and we think correctly, that the evidence in the case overcame the presumption of payment. As already stated, the findings establish that the board, room and laundry work furnished by the Tarrs and accepted by the decedent were reasonably worth $12 a week. That fact was competently found and is not open to dispute here. It is also undisputed that, while Mrs. Irvine resided with the Tarrs, she had an income of but $20 per month and no capital assets that she could invade for the payment of her keep. From her income, she had nothing left after paying for clothing, the upkeep and taxes on her property and the $3 she gave the Tarrs each month. It is thus mathematically demonstrated that she could not possibly have paid currently the reasonable worth of the services the Tarrs were supplying. Indeed, Mrs. Irvine expressly so admitted to her friend and daily visitor when she acknowledged that the $3 a month she was paying the Tarrs was not enough and further recognized her indebtedness to them when she said that, if she sold her house and lot, by the time she paid the Tarrs, she would have nothing left "to come and go on."

The decedent's monthly payment of $3 to the Tarrs was manifestly incapable of supporting a conclusive presumption of ...

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