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KELLY v. SHEEHAN (06/01/54)

June 1, 1954

KELLY, APPELLANT,
v.
SHEEHAN, ADMR



Appeal, No. 76, Jan. T., 1954, from judgment of Court of Common Pleas No. 1 of Philadelphia County, Sept. T., 1951, No. 266, in case of Francis Kelly v. Edward W. Sheehan, Admr., Estate of William J. Sheehan, deceased. Judgment affirmed; reargument refused June 26, 1954. Assumpsit. Before PARRY, J. Compulsory non-suit entered; plaintiff's motion and rule to take off non-suit refused. Plaintiff appealed.

COUNSEL

George O'Dougherty, with him James C. Crumlish, Jr., for appellant.

Henry Arronson, with him Theodore E. Nichterlein, for appellee.

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

Author: Arnold

[ 378 Pa. Page 34]

OPINION BY MR. JUSTICE ARNOLD

The plaintiff's complaint in assumpsit recited, inter alia: "5. On the date aforesaid [the 12th day of September, 1949], WILLIAM J. SHEEHAN, deceased, promised that he would, in his Will, give, devise, and bequeath the sum of Thirteen Thousand Dollars ($13,000.00) to the plaintiff. 6. Said contract further promised that plaintiff would care for and minister to decedent's wants and needs and act as a companion to him so long as decedent should live. 7. Plaintiff fully complied with all the terms and conditions of said contract. 8. Decedent, WILLIAM J. SHEEHAN, nonetheless failed and omitted to make the promised testamentary provision for decedent."

The court below granted a compulsory non-suit which it subsequently refused to take off.

The only testimony tending to prove that the decedent made a contract with the plaintiff was the testimony of Thomas G. White. This evidence fails to show any contract between the decedent and the plaintiff. This witness testified that the claimant said to the decedent: "Tell Tom what arrangements you made with me"; and the decedent replied, "well, Frank, you know I'm honest. You can go down and see Ted [an attorney]. He'll tell you all about it... you are going to get... [my deceased wife's] share if you stick with me." The decedent "opened the book up and let me look at it... It was a bank book [on the] Philadelphia Savings Funds... [The balance shown in the book was] beyond $13,000 to the best of my recollection." The decedent said, "and this is going to be his'n too." There was evidence that the plaintiff, the nephew of the decedent, did some housework about the premises where he lived with his uncle. He washed the dishes, bought groceries and cleaned the house.

[ 378 Pa. Page 35]

There is nothing showing that the plaintiff performed services on the faith of any such contract.*fn1 All the evidence shows is a bare declaration of the decedent that he intended to leave to the plaintiff: (1) the share his deceased wife would have taken had she lived; and (2) the $13,000 shown in the pass book of the Philadelphia Savings Funds.

The testimony of Thomas G. White is seriously contradicted. He admitted under cross-examination that he had told the administrator's counsel that the decedent did not promise the plaintiff the $13,000 if he took care of him; that he would not state that the plaintiff was taking care of his uncle because his uncle promised him something; and that Kelly, the plaintiff, drank quite a bit and he would say he had to get home in time to take care of his old uncle Willie. He further testified that he could not say that the decedent ever promised the plaintiff $13,000.

It is elemental law that evidence must be clear, precise and indubitable to sustain an oral contract like this, especially between the decedent and a relative: Stafford v. ...


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