Miles' Estate

<p>Appeal, No. 227, Oct. T., 1916, by Margaret Gilchrist, from decree of O. C. Philadelphia Co., Oct. T., 1915, No. 386, dismissing exceptions to adjudication in Estate of William J. Miles; deceased.</p> <p>Exceptions to adjudication.</p> <p>Dallett, P. J., filed the following opinion:</p> <p>“Delivered to Miss Jessie W. Gregory this day Nov. 21, 1913 — $1000.x/100 one thousand dollar Bond No. 7 Springfield Water Co. The value & proceeds in full to be used in construction of 3 Stores on Garden Plot, on 15th St. below Arch St. attached to premises, No. 1128 Arch Street, Philadelphia, (in case permit is granted to build said Stores) Otherwise, she is at liberty to sell bond at such times as I am in need of funds.</p> <p>Errors & omissions excepted.</p> <p>Wm. J. Miles.”</p> <p>Enclose</p> <p>Statement.</p> <p>1128 Arch St.</p> <p>Nov., 1913.</p> <p>The decedent was at this date, entitled under the will of his sister Mary J. Miles to income to be derived from the property No. 1128 Arch street for life, or until its purchase by the city for parkway purposes, after which he was to receive income upon a fund of $50,000. Jessie W. Gregory was the residuary legatee under the will and referred to by the testatrix as her “adopted child.”</p> <p>It was admitted that a contract for the improvements referred to was executed by Jessie W. Gregory, and it appears from the testimony that the necessary permit to improve was secured on Dec. 5, 1913, and work on the improvements immediately started. The improvements cost $5,213 and were completed about April 1,1911. The decedent died Jan. 6, 1911, never having received anything in return for his bond.</p> <p>This contract was clearly an agreement by a cestui que trust to contribute toward the improvement by a remainderman of a property in which he was interested for life in order that he might secure an income which otherwise he would not have. And in pursuance of this agreement the remainderman contributed approximately $4,-243 — more than four times the amount contributed by the cestui que trust.</p> <p>This view is not affected by any testimony on behalf of the decedent’s estate, and the fact that the decedent had not actually executed a power of. attorney to transfer the bond is immaterial. He had delivered it for a purpose and in pursuance of his agreement the remainderman hád commenced the improvements. Had he lived long enough he must have profited as rent amounting to $75 per month was contemplated.</p> <p>Even had the bond remained in his possession his estate would have been liable. As was said in Presbyterian Board of Foreign Missions v. Smith, 209 Pa. 361, by Mr. Justice Thompson :</p> <p>“A test of good consideration is whether the promise, at the instance of the promisor, has done, forborne, or undertaken to do anything real, or whether he has suffered any detriment or whether in return for the .promise he has done something that he was not bound to do or has promised to do some act or has abstained from doing something.</p> <p>“If any of the elements of such test be established the consideration becomes sufficient to support a promise although its inadequacy may be grossly disproportionate to the promise. The law does not consider such inadequacy and a learned judge has said that The smallest spark of benefit or accommodation was sufficient to create a valid consideration for a promise.’ ”</p> <p>He did however deliver the bond and the delivery was undoubtedly valid although without written endorsement : Madeira’s App., 17 W. N. C. 202; Com. v. Crompton, 137 Pa. 138; Hani v. Germania Life Insurance Co., 197 Pa. 276; Mothes’s Est., 14 Dist. R. 349.</p> <p>The transaction amounted practically to the purchase of an annuity, which because of the annuitant’s prompt death became an immediate loss.</p> <p>Any question as to jurisdiction of this court would appear to have been decided by Paxson’s Est., 225 Pa. 204. See, also, Fitzsimmons v. Lindsay, 205 Pa. 79, and Williams’s Est., 236 Pa. 259.</p> <p>We have considered the claim as though presented by petition for specific performance, and the promisee having performed her part, notwithstanding the fact that she is largely the gainer, her prayer must be granted.</p> <p>The exceptions are therefore dismissed.</p> <p>Error assigned was in dismissing exceptions to adjudication.</p>