Smith v. Hay

Citations

• 152 Pa. 377
• 25 A. 562
• 1893 Pa. LEXIS 984

Syllabus

<p>Decedents' estates — Contract for maintenance — Rescission.</p> <p>Hay owed Wagner, a friend, $1,060 on notes. In September, 1884, the parties substituted for the notes an agreement by which Hay, for the sum which he received in the surrender of the notes, agreed to furnish Wagner while he lived “ with lodging, boarding and necessary clothing, and in sickness to cause him to be properly cared for, said Wagner to remain in his own house where the lodging, boarding, etc., shall be furnished him or provided for by the party of the first part.” When the agreement was made Wagner had been living in his own house for several years with a granddaughter, the sole legatee under his will, who boarded him for the rent. In 1885, the granddaughter was succeeded in the occupancy of the house for six months by another tenant who paid the rent by boarding the owner. In November, 1885, the granddaughter resumed the occupation of the house, and continued her former relations with her grandfather until he died in April, 1886. It was not denied that Wagner had comfortable maintenance and proper care in sickness at the place agreed upon, and it was not shown that Hay refused any request of Wagner for board, lodging, clothing or care, or that the latter complained that the former was in any default in respect to their agreement. Held, that Hay as executor of Wagner’s wiL was not bound to charge himself with the amount of his notes for which the agreement for maintenance had been substituted. The evidence also fails to show cause for rescission by the granddaughter as legatee.</p> <p>Evidence — Competency of witness — Act of May 23, 1887.</p> <p>In a feigned issue to determine whether the executor was indebted to the estate, testator’s granddaughter and her husband, who were legatees, were competent to testify to matters occurring in the lifetime of the testator, but the executor was not competent.</p>