Smith v. Hay

Opinion by

Mr. Justice McCollum,

The appellant, who is the .executor of the last will and testament of Elijah Wagner who died on the fifth of April, 1886, filed an account of his administration of the estate on the first of September, 1887. To this account Evora N. Smith, who is a granddaughter of the testator, and to whom he gave all his property, filed exceptions. The only exception which has any connection with this litigation is in the words and figures following, to wit: “ The executor has not charged himself with the amount of his indebtedness to said estate, consisting of cash in hand belonging to said estate, amounting to $1,125.” An auditor was appointed to pass upon the exceptions, and on the hearing before him the exceptant demanded and was allowed an issue to determine whether the accountant was indebted to the testator in the sum of one thousand and sixty dollars, with interest .thereon from the 29th of September, 1884. The principal questions for our consideration relate to rulings made on the trial of this issue, in which the exceptant was plaintiff and the accountant was defendant.

It appears that on the 29th of September, 1884, the testator held two notes of the appellant, amounting to the sum of $1,060, and the parties substituted for them an agreement by which the appellant, for that sum which he received in the surrender of the notes, agreed to furnish the testator while he lived “ with lodging, boarding and necessary clothing, and in sickness to cause him to be properly cared for.” The testator was to remain in his own house where the board, lodging, clothing and care contracted for were to be furnished. This agreement was in writing, signed by the parties and under seal. Its validity is not questioned, and by it the indebtedness represented by the surrendered notes was satisfied. Thereafter the appellant’s liability to the testator was upon the agreement and measured by its terms; and while the liability was clear the amount to be expended in discharge of it was from its nature necessarily uncertain.

*382When this agreement was made the testator was and for several years previous thereto had been living in his own house with Evora N. Smith and her husband, who boarded him for the rent. They continued to live together in this manner until May, 1885, when the Smiths were succeeded in the occupancy of the house for six months by Simpkins, who paid the rent as they did, by boarding the owner. In November, 1885, they resumed, and continued their former relations with the testator while he lived. It is an undisputed fact that after the agreement he rented his house and boarded with his tenants as before, and it is not denied that he had comfortable lodging, board, clothing and proper care in sickness at the place agreed upon. It is not alleged that anything called for by the agreement was furnished to him at his expense except the board, and that was furnished by his tenants in payment of their rent under his voluntary arrangements with them. It is not shown or pretended that the appellant refused any request of the testator for board, lodging, clothing or care, or that the latter complained that the former was in any* default in respect to their agreement. On these facts the learned court below concluded that the appellee was entitled to a finding that the appellant was indebted to the estate in the amount of the surrendered notes, with interest, on the ground that he had failed to comply with his agreement, and her exception to his account was an election to rescind it.

We think this conclusion was erroneous. There was certainly no rescission of the agreement in the lifetime of the testator, and it was therefore in full force at his death. If the appellant had refused to comply with it, and in consequence of his refusal the testator had necessarily expended for board, lodging, clothing and proper care in sickness more than the sum which constituted the consideration of it, his legal representative could maintain an action on the agreement for the whole amount so expended. If the sum paid by the testator for these matters was less than the consideration of the agreement, the recovery would be limited to the amount so paid. In either case the liability of the appellant would be measured by the damage caused by his breach of the agreement. The liability, if there is any arising from the alleged non-performance in this case, existed at the death of the testator, and his legatee *383cannot enlarge it. We think too that the evidence fails to show sufficient cause for rescission. It was the agreement of the parties that the testator should continue to live in his own house, but it was not their intention that he should live there alone. He was to be lodged, boarded, clothed, and in sickness cared for there. It was proper for this purpose that a family-should live in the house with him, and this is what he evidently desired and both p'arties intended. The appellant was not bound to pay rent for such possession and use of the house by his own or another family as was reasonably necessary for the performance of his covenants. If he had employed the Smiths to live there on the terms the testator made with them, such action, if satisfactory to the parties concerned, could not be justly regarded as a violation of his agreement. Why then should his acquiescence in like action by the testator be construed as a rescission or even a breach of it? The parties were mutually satisfied with this action, and there is nothing in the evidence which indicates that either supposed their contractual relation was destroyed or affected by it. This relation and the friendship existing between them at and before the time the agreement was made continued while the testator lived. It is not a sufficient answer to these facts to say that the agreement proved to be advantageous to the appellant, nor does it lie in the mouth of the legatee to allege as nonperformance that which the testator accepted as performance. For the reasons and on the facts above stated we sustain the fifth, sixth, seventh, eighth and ninth specifications.

It was held by the learned court below that the appellee and her husband were competent to testify to matters occurring in the lifetime of the testator, and that the appellant was not. In this there was no error. The appellant is excluded by clause (e) of sec. 5 of the act of May 28,1887, but the appellee is not disqualified by it. It is admitted that the ruling complained of is sustained by the letter of the act referred to, but it is contended that it is unfair and therefore contrary to the spirit of the law to hold that one party to the issue may testify and that the other shall not.

The act of 1887 is not a step backward; it is an advance in the line of competency and the removal of disqualifications founded on interest or policy. We cannot construe this act *384contrary to its plain provisions simply because cases may arise in which one party to the issue is by these provisions competent and the other is disqualified. When the legislature intends that the incompetency of one party to the issue shall close the mouth of the other party it will doubtless say so. We are not satisfied that any error was committed in the rejection of the offer to prove what the testator said at the time the written agreement was drawn and signed!

The first, second, third and fourth specifications are overruled.

Judgment reversed.

See also the next case.