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BURR ESTATE. (05/04/55)

May 4, 1955

BURR ESTATE.


Appeal, No. 250, March T., 1954, from decree of Orphans' Court of Allegheny County, 1951, No. 4256, in Estate of Frank P. Burr, deceased. Decree affirmed.

COUNSEL

Harry Bowytz, with him Bowytz & Bowytz, for appellants.

Bresci R. P. Leonard, with him Van der Voort, Royston, Robb & Leonard, for appellee.

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

Author: Stearne

[ 381 Pa. Page 548]

OPINION BY MR. JUSTICE ALLEN M. STEARNE

The appeal is from the allowance by an orphans' court of a claim for nursing and housekeeping. The single question is whether or nor claimant overcame the presumption of periodic payments. A majority of the court ruled that she did. One Judge dissented.

At the audit the issue was beclouded by the inapt preliminary statement of counsel for claimant concerning the nature of the claim. He stated that the claim was based upon Quantum meruit. He did, however, refer to an alleged agreement. It is well settled that where a claim is made upon an express contract to pay a fixed sum, on failure to prove the contract, claimant may not recover on a quantum meruit: Witten v. Stout, 284 Pa. 410, 131 A. 360; Cramer v. McKinney, 355 Pa. 202, 204, 49 A.2d 374; Bemis v. Van Pelt, 139 Pa. Superior Ct. 282, 11 A.2d 499. An orphans' court, however, is a court in equity within the limited sphere of its operations. While it acts with procedure in equitable form, it does not so do with equity's technical nicety: Steffy and Shimp's Appeal, 76 Pa. 94; McCaskey's Estate, 307 Pa. 172, 178, 160 A. 707; Worthington's Estate, 6 Pa. Superior Ct. 484. We have read the testimony with care. A contract was neither proved nor attempted to be established. The learned dissenting Judge accurately states in his opinion: "In the instant case, although counsel for the claimant stated that the services, for which the claimant seeks compensation, were rendered to the decedent pursuant to her undertaking under an express contract and his undertaking to compensate her by a devise in his will, there is no testimony in the record which proves that this contract existed. ..." Judge Cox emphasized the issue in this case, viz.: a strong presumption of periodic payments which it was claimant's duty to overcome.

[ 381 Pa. Page 549]

Claimant is Catherine Marshall. Her claim is summarized by President Judge BOYLE in his opinion dismissing exceptions to the adjudication, viz.: "The claim ... is for services rendered as a nurse and housekeeper for the decedent from August 18, 1949, to April 3, 1951. During this period the decedent suffered from a severe arthritic condition, arteriosclerosis, high blood pressure and tremors. He was an invalid. He was in pain continuously, unable to dress himself or walk without assistance. He drooled at the mouth and required constant attention. He had to be helped to and from the bathroom. He required enemas and massages. He weighed 185 pounds and had to be lifted and helped from his bed on account of his arthritic condition. The decedent lived alone. The claimant, Catherine Marshall, shall, began to take care of him on August 18, 1949. ... In addition to the nursing services which Mrs. Marshall performed she also prepared and served the decedent's meals, did all the washing for the household and kept the sickroom and the house neat and clean. ..." It is unquestioned that the narrated services were performed by claimant and no attempt was made by appellants to prove actual payment. The single inquiry is, as above stated, whether or not claimant successfully overcame the strong presumption of periodic payments: Braden Estate, 363 Pa. 42, 68 A.2d 734; Sanders Estate, 370 Pa. 208, 87 A.2d 923, and the cases therein cited.

Decedent's former attorney was permitted to testify without objection that decedent had told the attorney "[claimant] should not worry that [decedent] would take care of her". Judge BOYLE correctly wrote in his opinion: "Q. Did you [i.e. the lawyer-witness] personally have any conversations with Mr. Burr with regard to whether or not Mrs. Marshall was to be paid or was being paid or was in the future to be paid for

[ 381 Pa. Page 550]

    her services? A. Well, at the very beginning - shortly after the will of Mary Burr was probated, Mr. Burr has decided to give Mrs. Marshall the house on Waite Street. ... Q. Then you say about that time or shortly thereafter Mr. Burr wrote a will in which he left the Waite Street house to Mr. and Mrs. Marshall? A. That's right. That was shortly after. It was while Mrs. Doherty was still there. She was here for the funeral. Q. She was her for the funeral? A. She was still in Pittsburgh at the time. She was there when this will was discussed. ... Q. Well, I understand from your remarks now, that Mrs. Doherty, the niece, participated in the discussion with reference to the plans for that will, did she? A. She did. Q. did Mr. Burr state what his reasons were for leaving the Waite Street property to the Marshalls? A. I believe Mr. Burr stated, prior to Mary's death, Mrs. Marshall came over and helped Mary and Frank, and in consideration of her services, or her coming over, he was leaving her that house."

"Over the objection of counsel for the opponents of the claim Mr. Ruffennach [lawyer-witness] further testified: 'Q. Did he ever say anything indicating as to whether Mrs. Marshall was being paid? A. He was giving her these properties from time to time.'"

[ 381 Pa. Page ]

"Thereafter the opponents of the claim moved to strike out all Mr. Ruffennach's testimony relating to the proposed testamentary provision in favor of the claimant on the ground that the communications between the decedent and the witness as to the decedent's will were privileged. As to the testimony on Pages 12, 13, 14 and 15, the record shows that when Mr. Ruffennach discussed the will with the decedent Mrs. Doherty, a niece of the decedent, was present. A communication between attorney and client made ...


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