Perratt's Estate

82 Pa. Super. 5, 1923 Pa. Super. LEXIS 223

• Court: Superior Court of Pennsylvania
• Decided: April 18, 1923
• Docket: Appeal, 133
• Status: Published

Opinion

Opinion by

Porter, J.,

This is an appeal from the decree of distribution. Henry E. Hartford presented a claim for boarding and lodging furnished the decedent from November 1, 1916, to the day of his death, on February 9, 1920, practically three years and three months, which claim the court disallowed, and the appeal is by the claimant.

The decedent was an unmarried man and during the latter years of his life had lived, at various times, with one or other of his nieces and nephews. Prior to November, 1916, he had been living with H. C. Elder, a nephew. About November 1,1916, he went to live with the claimant, whose wife was a niece, upon a farm in Beaver County, and there spent much of his time until his death, but how much the evidence fails to give the slightest indication. He spent two winters during the period in question with a relative in the City of Pittsburgh. He lived a “good bit” of his time at the farm of a nephew, M. R. Elder, where he assisted with the harvesting, took his meals and occupied a room. M. R. Elder testified that while the decedent was living with him he worked on the farm and earned his board. There was also testimony that the decedent, during the time that he was staying with the claimant, helped to some extent with the work upon the farm. The court properly held that the relationship between the decedent and the wife of the claimant did not give rise to a presumption that the boarding was to be furnished gratuitously. The court, however, based its refusal to allow the claim upon two grounds: (1) The evidence failed to establish how much of the time, during the period in question, the decedent had lived with the claimant, and (2) that the decedent had paid for his boarding. We are of opinion that the evidence fully warranted the action of the court, upon the grounds stated. There was no pretense that the decedent had made any agreement to pay; if the claimant was entitled to recovery it was upon an implied contract to pay for the boarding and lodging which he furnished. No witness pretended to say- bow many weeks tbe decedent bad lived with tbe claimant, and tbe evidence clearly established that be bad, during a considerable part of tbe time in question, been living with other relatives. Tbe appellant utterly failed to produce testimony tending to establish bow many weeks tbe decedent bad lived with him and there was nothing in tbe evidence which afforded any satisfactory basis for computing tbe amount which be was entitled to recover, if entitled to recover anything. No demand was ever made by tbe appellant upon tbe decedent in bis lifetime, although tbe latter bad money and was always able to pay.

Homer Nicely, a disinterested witness, testified that on one occasion during tbe lifetime of tbe decedent tbe appellant bad said to tbe witness “Richard Perrott paid bis way as be went. He said be would not go to your place or my place and agree to pay board at so much per week, but every once in a while be banded Nettie a piece of money, meaning bis wife.” Nettie was tbe wife of tbe appellant and niece of tbe decedent. One of tbe witnesses called by tbe appellant testified, without objection, that tbe decedent bad said to him, upon bis return from having spent a winter with Sadie Sharpe in Pittsburgh: “that it cost him very little more to live with her than it did with Henry and Nettie,” Henry and Nettie being tbe claimant and bis wife. This testimony seemed to corroborate tbe testimony of Nicely, to tbe effect that tbe decedent “paid bis way as be went.” Tbe finding of tbe court below was sustained by competent evidence and tbe specifications of error are dismissed.

Tbe decree is affirmed and tbe appeal dismissed at cost of tbe appellant.