King's Estate

Opinion by Mr. Justice Sterbett,

Appellant’s claim is based solely on what is claimed to be a valid and binding promise of the decedent to leave her by will a legacy of three hundred dollars. The alleged agreement *144 is evidenced, in the main, by the last clause of a paper which reads as follows :

“ Received this day from Ann Charlotte Gast the sum of one dollar in full for all my services rendered her in her house up to this date, and I agree to let the legacy in her favor in my will, as now made, stand and remain for her benefit at my death.”

This receipt, dated Feb. 1, 1889, is signed by the decedent, Catharine King, who died Sept. 15, following. Testimony was introduced to prove that, prior to giving the receipt, Miss King had made a will, then in her possession, giving a legacy of three hundred dollars to appellant; but for some unexplained reason that testamentary paper was destroyed or revoked, and by her last will and testament nothing whatever is given to appellant. Hence the complaint that the promise of the testatrix “ to let the legacy in her favor .... stand and remain for her benefit,” etc., was not kept.

It was, of course, incumbent on appellant to prove a consideration for the promise on which she relied. There is nothing in the paper itself, nor in the evidence dehors the instrument, to show that the legacy was promised in consideration of services previously rendered, or to be performed thereafter. At most, the paper contains nothing more than a naked promise of the decedent to let a legacy, in her will as then made, “ stand and remain ” for appellant’s benefit; whether as a gift, or in payment for services, or something else, is not stated therein, and does not otherwise sufficiently appear. The learned auditor and court below were right in holding that the paper in question, either alone or in connection with other evidence, was insufficient to establish such a contract as can be enforced against the estate. There was no proof of the rendition of any services before the execution of the paper or that there was any consideration whatever for the promised legacy. There was some evidence of services rendered after the paper was signed, but there was nothing to warrant a finding that they were rendered in consideration of the legacy. As was said in Wall’s Appeal, 111 Pa. 464 , such a contract can only be enforced when it is clearly proved by direct and positive testimony, and where its terms are 'definite and certain. The evidence proves nothing more than a voluntary intention of the *145 testatrix to let the legacj^ in favor of appellant stand as it then was in her will. There is nothing whatever to prevent the subsequent change of that intention. The assignments of error are not sustained.

Decree affirmed and appeal dismissed with costs to be paid by appellant.