Lebo Estate

169 A.2d 105, 403 Pa. 123, 1961 Pa. LEXIS 430

Opinions

Opinion by

Mr. Justice Musmanno,

Ira T. Lebo died testate on November 28, 1957. On May 26, 1958, Susan E. N. Peffley, a cousin of Lebo’s mother, filed a claim against the estate for $6500 in payment of services assertedly rendered to Lebo over a period of six years. The executor disallowed the claim and Mrs. Peffley excepted to the account. The Orphans’ Court of Dauphin County, after a full hearing, sustained Mrs.. Peffley’s exceptions,

* and ordered the executor to amend his schedule of distribution, allowing $5,000 to Mrs. Peffley in payment of her claim. The executor, Donald C. Wag-goner, appealed.

The appellant contends that there is no evidence of a contract between the testator and the claimant for payment of the services in question. But Mrs. Peffley’s claim is based on quantum meruit and not on contract. The obligations which a man incurs during life, no less than his good deeds, live after him and, to the extent that he lives on through his property, he must discharge the obligations he failed to meet while alive. This is not to say that the record shows Mr. Lebo to have been an unjust man. On the contrary, generous legacies to charities enumerated in his .will would attest to a benevolent nature, but, being human, he could, and possibly did overlook the most obvious of obligations, namely, that of paying for services rendered to one in connection with the very property which became the vehicle for his posthumous generosity.

Lebo owned a grocery store which occupied the first floor of a building with two floors given over to apartments. Mrs. Peffley helped Lebo in his grocery store business and attended to all transactions involving the rental of his apartments. She handled his affairs at the bank. One witness testified that Mrs. Peffley “made investments, bought bonds or whatever they buy and if he had any other kind of banking business she would take care of it.” She paid his household bills and when he was hospitalized she made arrangements for nurses and special care and visited Mm every day to receive Ms instructions, which she dutifully discharged.

The services Mrs. Peffley performed for Lebo usually consumed four or five hours a day, two or three days a week. The vice president of the Central Trust Capital Bank testified that Mrs. Peffley would come to the bank in connection with Lebo’s affairs three or four times a week.

Appellant’s counsel urges in his brief that the described services were “trivial.” What is trivial is strictly a matter of comparison. Even an earthquake of sizable proportions is trivial against an atomic blast which lays waste half a continent. Mrs. Peffley’s services were indeed trivial compared to the job of managing Macy’s Department Store, but for Ira T. Lebo those services were of major importance and relieved Mm of many worries so that he could relax and enjoy the blessings of tranquillity in his declining years. The lower court estimated Mrs. Peffley’s services to have been worth $5,000. The record amply justifies the reasonableness of this appraisement.

After decrying the nature and value of the services rendered by Mrs. Peffley, the appellant then argues that Mrs.- Peffley was probably paid for them anyway. He says through his counsel: “No evidence to show non-payment was introduced.”

How does one prove that he was not paid, except through the assertion thereof? Of course, Mrs. Peffley was disqualified from testifying because of the Dead Man’s Act which legally sealed her lips as death sealed those of the decedent. But the fact that she made a claim for payment is in itself a denial of payment. The appellant executor, however, was not required to stand mute, nor was he denied access to the records which would have definitively revealed payment if there had been payment. In point of fact, the executor himself who prepared Lebo’s income tax returns, testified that Lebo “never included any payments in his accounts for any payments to Mrs. Peffley for services rendered.”

The appellant argues that Mrs. Peffley expected a larger legacy than the $10,000 which the decedent left her through his will, and that because of that assumed disappointment she brought her claim for services. But motivation, even if it were proved, (and there is no evidence of any such motivation aside from the spirited argument of appellant’s counsel), cannot take the place of substantive proof. If Lebo paid Mrs. Peffley for her services, it would certainly seem strange that over a period of six years there would not be some proof, oral or documentary, to that effect. The record is as bare as the Sahara of any such evidence.

Then the appellant contends that in cases of this kind there is the presumption of payment. The lower court well responded to this contention as follows: “It must be remembered, however, that this woman was not a domestic or a nurse or a person of that type. Her business was one of trust and responsibility. What services she rendered were rendered in connection with the store business and the personal fiscal business of the decedent. We have no proof that he ever expected these services to be rendered gratuitously nor do we have any proof that he ever paid for them.”

In the case of Rohrbach v. Ross, 75 Pa. Superior Ct. 536, which had facts strikingly similar to those in the case at bar, the Superior Court said: “The legal presumption that the plaintiff was regularly paid during the lifetime of the decedent had no application to the present case, not only because of the relations of intimacy assumed by the decedent toward the claimant, but because the uncontradicted testimony shows that the services performed by the claimant were far beyond and outside of the range of domestic .services.”

In Istocin’s Estate, 126 Pa. Superior Ct. 158, 163, the Superior Court said: “Claimant was not a domestic servant, and the services which he rendered were not of a domestic character. Hence the presumption that payment was made at regular periods has no application. The claimant did not come within the class to which the presumption is applicable. Mack’s Estate, supra; Gibbs’ Estate, 266 Pa. 485, 110 A. 236.”

In Lach v. Fleth, 361 Pa. 340, this Court stated that in claims of this character, the claimant has the burden of proving: “(1) the performance of the services, (2) the decedent’s acceptance of them, and (3) their value.”

We are satisfied that the record shows that the claimant met these three requirements, and the order of the Court below is affirmed. Costs on the appellant.

There was another exception to the account on the basis that the executor had failed ito award to Mrs. Peffley certain government bonds. At the hearing, the executor conceded the bonds were due the claimant. Thus, no further mention will be made of that matter in the opinion.