Breitinger v. Heisler

Sloan, J., delivered the opinion of the Court. This is an appeal from a decree of the Circuit Court for Cecil County, awarding the appellee $3,853.18 against the personal estate, so far as applicable, and then against the real estate in Cecil County, of Henry P. Sauers, late of Philadelphia County, Pennsylvania, deceased, on a creditor’s bill filed against the heirs, executors, devisees and legatees of Mr. Sauers. The amended bill of complaint alleges that Henry P. Sauers was in his lifetime indebted to the appellee in the sum of $3,938.18; that he died on or about May 30th, 1926, leaving a last will and testament admitted to probate in the Orphans’ Court of Philadelphia County, Pennsylvania; that his personal estate in Cecil County was of little value, insufficient to discharge his debts, and that he owned thirteen and one-half acres of land situte in Cecil County, which was a part of a larger tract of land conveyed to him in 1900. The bill then prays for a decree applying the personal estate to the payment of the debts of Henry P. Sauers; that an accounting ¹⁵⁹ 'be taken under the direction of the court; and that the real ■estate, or so much thereof as may be necessary, be sold for the payment of so much of the debts due the appellee and other ■creditors as may be unsatisfied after the application of the personal estate thereto.

There was filed with the bill an account which the appellee claimed to be due him from the deceased, which is as follows: “Estate of Henry P. Sauers, Deceased, To Ellwood D. Heisler, Dr. To wages at $50 per month from December 22nd, 1919, to May 30th, 1926..........$3,863.28 September 1st, 1924, 35 gallons gasoline.................. 7.00 4 gallons cylinder oil .............. 3.00 5 gallons kerosene ................. .75 200 lbs. ice.......................... 2.00 September 10th, 1924, 15 gallons gasoline.................. 3.00 200 lbs. ice ......................... 2.00 September 24th, 1924, 20 gallons gasoline .................. 4.00 3 gallons cylinder oil............... 2.25 5 gallons kerosene ................. -75 200 lbs. ice .......................... 2.00 September 1st, 1925, 35 gallons gasoline.................. 7.00 4 gallons cylinder oil............ 3.00 5 gallons kerosene .................. .75 200 lbs. ice .......................... 2.00 3 years’ rent of shanty.............. 36.00 $3,938.78” With the bill was filed a certified copy of the will, wherein Erederick L. Breitinger, a lawyer of Philadelphia, Pennsylvania, and Catherine W. Sauers, wife of the decedent, were named as executors. The will indicates that Mr. Sauers was a man of considerable means. It appears from the testimony that Henry P. Sauers had for about twenty years owned a farm in Cecil County, located ¹⁶⁰ on the Northeast River, near Charlestown, on which there was a large dwelling house occupied by him during the summers, and on which farm there were several tenant houses, one of which was occupied hy the appellee and his family for many years until all except thirteen and one-half acres of the farm, located on the Northeast River, had been sold by Mr. Sauers. During the years that he lived on the farm the appellee was in the employ of Mr. Sauers, and when employed exclusively by him was paid as wages eighty-five dollars per month.

Eor two winters during the time the appellee lived on the farm he worked at Perry Point as a mechanic, and while so employed he was paid fifty dollars per month, and when through at Perry Point he returned to the farm of Mr. Sauers and resumed his full time employment at eighty-five dollars per month. This continued down to the 19th day of December, 1919, when the farm was sold, and the regular payment of wages to the appellee ceased. In January, 1920, the appellee left the farm, which no longer belonged to Mr. Sauers, and removed to Charlestown, where in 1921 he bought a house. The appellee relies solely on the testimony of his wife and his twenty year old son as witnesses to the contract, which they allege was made by Mr. Sauers for the debt they now undertake to impress upon his estate.

The testimony of the wife as to the alleged agreement to pay the appellee fifty dollars a month after the sale of the farm, and as to services rendered by him in consideration therefor, is as follows: * * Then Mr. Lucas bought the place and we moved to Charlestown in January and the last time Mr. Sauers paid my husband the $50 was in December, 1919; he came down to the place to bid us goodbye before we moved from the farm to Charlestown; then he said, Pete, you take my boats and other things over to Charlestown and look after them over there for me, and I will pay you $50 a month the same as I have paid you over here. ' (6 Int.) Mrs. Heisler, did Mr, Sauers ever pay your husband $50 a month he promised him after you moved to Charlestown? (Ans.) No, we never had payments 'after we moved to Charlestown. (I Int.) Did you or your husband ever ask him for a settlement ? (Ans.) Yes, ¹⁶¹ sir; the first time that he asked was in 1925, when he eame down to go rail birding and he told him he wasn’t working at Perry Point now and we needed some extra money, so he said: ‘Pete, I am going to pay your wages, I will attend to it.’ The next time he came down to the club he came up to our place to see about getting ready to duck, and Pete spoke to him about it again, and than he said, ‘Pete, I will pay you the next time11 come down, -as I was up late at the club last night, and will pay you the next time I come down.

That was the last time that we saw him. The next time he came down to the club it was raining, and he didn’t get up to see us, and wo didn’t know he was down there, so we didn’t see him any more before lie died. (8 Int.) What did your hus.bacad’s duties consist of and what did he do- for Mr. Sauers to earn the $50 a month? (Ans,) He tended to- the boats-through the winter and in the spring he put the boats overboard; he fished and he always sent him fish; he tended to the boats through the summer 'and the big boat was always, ready for Mr. Sauers, if he wanted to come down for a trip; in the fall he got ready for rail birding and he took him rail birding several times i.n the fall, and after that was over he got the boats ready for ducking; he painted all the decoys, painted and fixed the sink boxes, he ducked him during the fall and after ducking was over he put- away the boats and the decoys and things for the winter.” The son, Elwood D. Hoisler, Jr., testified that “’.During September and October in 1925, at our home, in Charlestown, father, mother, Mr. Sauers, and I were present, * * * and father asked Mr. Sauers if he would pay his. wages; that, he wasn’t working at Perry Point any longer and he needed the money, and Mr. Sauers told him that he would straighten it up.” As to1 the second conversation he said, “Mr. Sauers was at our house and my father asked him again about the wages, and Mr. Sauers told him that he would pay him the next time he came down, and hei never came- down any more at our house.

(Q.) Was there anything s-aid in either conversation about what he was to. pay your father? (Ans.) In the last conversation he said his wages were $50 a month.” ¹⁶² The evidence is that the thirteen and one-half acres retained out of the farm by Mr. Sauers was for the purpose of providing a place for hunting, and from the time of the sale down to the time of his death the appellee, during the hunting season, looked after the boats, and after the season was over saw that they were put away. Then in the summer following he would get out the boats, paint them and put them in repair, ready for such use as Mr. Sauers had for them, and the appellee also used the boats himself. John Cooper, a witness, testified that the nature of the appellee’s work was “taking care of the boats, keeping them in repair, painting them, taking him out in the yacht, out ducking and rail birding and fishing some,” and that this had been going on for about six years.

To the same effect Charles E. Norman testified. It is evident that the services which the appellee rendered the decedent from the time of the sale of the farm in December, 1919, to his death in May, 1926, were only occasional or seasonal, and that he was not steadily employed by Mr. Sauers. From time to time it appears that certain settlements were made by Mr. Sauers with the appellee, as is evidenced by the checks which were paid by him to the appellee up to within two months of his last visit to Charlestown. The dates of the checks with their amounts and the notations on the respective