Hartman's Estate.

Decedents' estates-Claims for housekeeping and nursing-Necessary evidence Staleness-Presumption of payment.

1. A claim for $6825 for services rendered decedent by claimant as housekeeper and nurse, being at the rate of $25 per week from Aug. 24, 1919, to Nov. 21, 1924, with interest thereon, will not be allowed where decedent required a nurse for only nine weeks before his death, and there is no evidence indicating what part of the claim is for nursing and what part for housekeeping.

2. Such a claim is stale in the absence of some explanation of claimant's failure to present it in decedent's lifetime, and the presumption of payment arising from lapse of time is not rebutted by admissions by decedent, in the absence of claimant, to the effect that he had not paid her wages, that he owed her "a few thousand dollars" and that he was going to pay her.

Exceptions to adjudication. O. C. Phila. Co., Oct. T., 1925, No. 3373. Keller Hughes Gilbert, for exceptions; George H. Detweiler, contra. THOMPSON, J., April 30, 1926.-The decedent died Nov. 24, 1924, leaving a widow and one son, now about seventeen years of age, and a will, whereby he gave his entire estate to his son. The widow has elected to take against the will, and at the audit of the account of the executor a claim was presented by Anna B. Ehrenzeller for services as housekeeper and nurse to the decedent in the sum of $6825, being at the rate of $25 per week from Aug. 24, 1919, to decedent's death, Nov. 24, 1924, together with interest thereon. As decedent did not leave his wife until May, 1920, claimant reduced her claim to the sum of $6214, that being the aggregate amount at the rate claimed for the four years immediately prior to decedent's death.

The Auditing Judge rejected said claim, and in so doing we are of the opinion that he committed no error. As exceptions were filed to the action of the Auditing Judge, and the same were argued with great force, we have read the testimony carefully, and from the same it appears:

1. That the decedent at the time of his death was about sixty-nine years of age; that of the claimant does not appear; that he was actively engaged in business at the southwest corner of 5th and Callowhill Streets, Philadelphia, where he conducted an establishment for the compounding, mixing and selling of soft drinks, in connection with a partner in said enterprise. In May, 1920, decedent left his wife and son and lived at various places in the City of Philadelphia, where he rented an apartment which he occupied in conjunction with the claimant. No maid was employed, and claimant cooked the meals for the decedent as well as herself, kept the apartments tidy, and did those things which are generally done by a housekeeper or wife. No explanation is attempted as to why decedent left his wife.

2. That the relations between claimant and decedent were meretricious. 3. That, at the most, decedent was not incapacitated from attending to his business daily for more than nine weeks during the period of four years for which claim was made, and his physical condition was not shown to be such as to require the services of the nurse during the entire four-year period. 4. The claim is not made on an express contract, but a quantum meruit. The claim for $25 per week for the period of four years prior to the death of decedent is for services rendered as housekeeper and nurse. As decedent did not need the services of a nurse for more than nine weeks during that period, we have no information as to how much of the claim is for housekeeping and how much for nursing. As was said in Hirst's Estate, 274 Pa. 286, 288: "A claim against the estate of a decedent must be as definite and

Hartman's Estate.

precise as is required to recover a debt in an action at law. While formal pleadings are dispensed with, the claimant should produce evidence showing the nature and character of the debt, its origin, the terms of the contract and the exact amount claimed to be due. In an action at law, he is required to show the net balance, and in the claim presented against this estate the amount does not appear with the exactness required in proving claims of this character."

Furthermore, the claim as made is presumed by law to be paid, and claimant, in an effort to rebut this presumption, called as her witness Dr. Emanuel, who testified as follows (pages 11, 12):

...

"He (decedent) told me on each occasion that she was not being paid weekly, but that he would pay her. That happened on more than one occasion. . . . Two days before his (decedent's) death, on the 22nd, . . . he (decedent) said to me again, 'I have not paid her anything yet, but, doctor, I am going to pay her; . . . I owe her a lot of money; I owe her a few thousand dollars, and I am going to make arrangements in my will to pay her.' They were his very words, as true as I have touched that Bible. ... That was two days before his death. . . . He said he owed his life to her; without her, or without a practical nurse, that man would have been dead long ago."

...

The circumstances under which these statements were made do not clearly appear. Claimant was not present, and the explanation of Dr. Emanuel as to how the conversation came about is most unsatisfactory. Dr. Emanuel states that as he was so impressed with the care and attention which claimant was giving decedent, he thought she should be well paid, and expressed a curiosity to know whether she was being well paid, and asked decedent concerning the same. That is his explanation as to how the conversation came about. The Auditing Judge who saw the doctor on the stand states in his adjudication that he "was not impressed" with Dr. Emanuel's testimony, nor are we after reading the same.

Furthermore, the claim is a stale one, and as was said in Gilbraith's Estate, 270 Pa. 288, 291: "We said in Carpenter v. Hays, 153 Pa. 432, 434, and have since frequently repeated, 'without variableness or shadow of turning' therefrom, that 'claims against a dead man's estate, which might have been made against himself while living, are always subjects of just suspicion, and our books, from Graham v. Graham's Exec'rs, 34 Pa. 475, to Miller's Estate, 136 Pa. 239 (249), are full of expressions by this court of the necessity of strict requirement of proof and the firm control of juries in such cases.' And again (page 435): "The presumption grows stronger as each period of payment goes by. In the nature of things, it is less potent against a claim for two or three months' wages than for two or three years. . . . As said by our late brother Clark in Gregory's Exec'rs v. Com., 121 Pa. 611: "The presumption will gather strength with each succeeding year, and the evidence to overcome it must, of course, be correspondingly increased.'' Experience has demonstrated not only the wisdom of these rules, but the necessity for even more strictly adhering to them, and we propose to use the light thus cast upon our pathway."

No explanation is offered by the claimant as to why her claim was not made in the lifetime of the decedent, such as a declaration of the decedent to the effect that he had no ready money, as was shown in Royer's Estate, 217 Pa. 626. Where a claim is made against a decedent's estate that could have been made in the lifetime of the decedent, some satisfactory explanation as to why said claim had not been made should affirmatively appear. Many reasons

Hartman's Estate.

suggest themselves as to why a decedent does not pay an honest obligation in his lifetime, such as shortage of ready cash, his money being invested and not caring to sell investments; ownership of real estate which is vacant or needs repairs, personal and family obligations which require the use of what ready money decedent had, and any other similar facts bearing on the subject.

As the claim here made is without merit, the Auditing Judge was correct in dismissing the same. It would require much stronger proof than claimant has offered in justifying us in diverting a man's estate from his wife and child in favor of a woman with whom he was living.

All exceptions are dismissed and the adjudication confirmed absolutely. LAMORELLE, P. J., did not sit.

Anderson v. Anderson.

Divorce Jurisdiction, C. P.-Libel filed in county of respondent's residence-Act of April 26, 1905.

1. Under the Act of April 26, 1905, P. L. 309, where the libellant resided in Bucks County when the desertion occurred and the respondent resided in Philadelphia, the courts of Philadelphia County have jurisdiction.

2. In such case, the jurisdiction of the courts of Philadelphia County under the Act of 1905 is concurrent with that of the courts of Bucks County under the Act of March 13, 1815, P. L. 150.

3. Whether the desertion occurred in Philadelphia or Bucks will depend on whether respondent's desertion began with her refusal to rejoin her husband in Bucks County while she herself was living in Philadelphia, or whether, while both were living in Philadelphia, she formed a clear intention to desert, which intent was carried out by leaving her husband in Philadelphia.

Libel in divorce. Rule to dismiss libel. C. P. No. 2, Phila. Co., June T., 1925, No. 841.

Frank B. Stockley, for libellant; Clinton A. Sowers, for respondent.

LEWIS, J., May 17, 1926.-The respondent has filed this petition to have the libel dismissed solely on the ground that it avers the residence of libellant at the time of filing to be in Neshaminy, Bucks County; respondent's position is that "the libellant in a divorce action a. v. m. must live in the county of the court to which he presents the libel and if he does not, the court is without jurisdiction."

It is true that by the provisions of the Act of March 13, 1815, § 2, P. L. 150, a libel must ordinarily be presented to the Court of Common Pleas of the county wherein the injured party resides, and the provisions of that act have not been abrogated by the Act of May 9, 1913, P. L. 191, which gives jurisdiction to the Courts of Common Pleas of all cases in divorce when the libellant shall have resided in the Commonwealth for one year previous to the filing of the libel: Mauser v. Mauser, 59 Pa. Superior Ct. 275.

The position of respondent, however, entirely overlooks the Act of April 26, 1905, P. L. 309, which provides as follows: "That where a husband and wife shall be resident in different counties of this Commonwealth, and while they are so severally resident a cause of divorce shall arise, the injured husband

Anderson v. Anderson.

or wife may, at his or her option, institute and prosecute proceedings in divorce either in the county of his or her own residence or in the county wherein the offending husband or wife shall be resident and the cause of divorce shall have arisen."

In his answer to respondent's petition, libellant avers that "when the cause of action in this case arose he was a resident of Neshaminy, Bucks County, Pennsylvania, and the respondent was a resident of Philadelphia, Pennsylvania." And in further explanation of this statement, libellant avers that "in the latter part of February, 1922, he established a residence in Neshaminy, Bucks County, Pennsylvania, while his wife, the respondent, was a resident of Philadelphia, and thereafter requested his wife on many occasions to come to Neshaminy and make her abode with him, but she always refused to do so, and, finally, in October, 1923, he demanded that she come and she still refused, and has continued in such refusal to this date."

The rule coming before us on petition and answer only, we are bound to accept the averments of the latter as true: Good v. Grit Pub. Co., 214 Pa. 614. Do the facts as averred bring the case within the provisions of the Act of 1905? That act requires (1) that the husband and wife should reside in different counties at the time “a cause of divorce shall arise," and (2) that the cause of action shall have arisen in the county wherein the respondent resides at the time of the filing of the libel. The libellant here avers the presence of the first requirement, and with no testimony before us as to the circumstances under which the libellant took up a residence in Neshaminy, Bucks County, while the respondent remained in Philadelphia, we are not in a position to say the averment is not true. If it should appear later that the desertion actually occurred while the parties were living together in Philadelphia County, that is, at the time libellant set out for Bucks County, the present action is clearly not maintainable, for the cause of action then arose while the parties were living in the same county: Ashton v. Ashton, 21 Dist. R. 611; Eicher v. Eicher, 25 Dist. R. 972, 44 Pa. C. C. Reps. 437; Cunningham v. Cunningham, 1 D. & C. 60, 50 Pa. C. C. Reps. 286.

If the desertion did not take place at the time libellant left Philadelphia to establish his residence in Bucks County, but occurred at a later time by virtue of respondent's refusal to comply with libellant's demand to rejoin him in the latter county, did the cause of divorce arise in Bucks County (where the libellant resided) or in Philadelphia (where the respondent resided)? This raises an interesting question, the answer to which is not free from doubt, but here again we are at a disadvantage in not having the facts and circumstances in evidence. If it can be shown that respondent actually formed the intention in Philadelphia County to desert libellant, or if facts are shown from which the intent will be inferred, and respondent, while here, carried out that intent, we are inclined to the view the cause of divorce arose here, and thus the provisions of the Act of 1905 would be fully met.

In nearly all of the cases in which the application of the Act of 1905 has been discussed testimony had been taken. Here we have nothing but the averments of the petition and answer, some of which are perhaps conclusions of law. The only proper course, under such circumstances, is to discharge the rule at the present time, without prejudice to the rights of the respondent to again raise the question after the evidence is in the record. If libellant desired to be certain of the court's jurisdiction before proceeding with the taking of testimony, he should have filed his libel in Bucks County where, under his averments, he could have maintained the action without doubt.

And now, May 17, 1926, rule discharged without prejudice, as above stated.

Mutual Insurance Companies Tax Settlement.

Taxation Mutual insurance companies-Gross premiums-Exemption for portion of year 1925—Act of May 6, 1925.

A domestic insurance company doing a life insurance business upon the mutual plan without any capital stock is relieved by the Act of May 6, 1925, P. L. 526, from the payment of a tax on its gross premiums and assessments from Jan. 1, 1925, to May 6, 1925.

Department of Justice. Opinion to Hon. Edward Martin, Auditor General. MOYER, Dep. Att'y-Gen., Feb. 25, 1926.-You have advised this department that an appeal has been filed with you from the settlement of an account for tax on gross premiums against the Provident Mutual Life Insurance Company of Philadelphia for the four and one-fifth months ending May 6, 1925.7 The Provident Mutual Life Insurance Company of Philadelphia is a corporation of the State of Pennsylvania doing a life insurance business upon the mutual plan, without any capital stock, but having an accumulated reserve. Prior to Jan. 1, 1925, this company filed its report in your office semi-annually, setting forth the entire amount of premiums received by it during the preceding six months' period, and paid to the Commonwealth of Pennsylvania a tax of eight mills on the dollar upon the gross amount of said premiums, in accordance with the provisions of section 24 of the Act of June 1, 1889, P. L. 420, as amended by the Act of June 28, 1895, P. L. 408. The report now in question was filed, under protest, after the passage of the Act of May 6, 1925, P. L. 526, in compliance with a demand from you under date of Aug. 4, 1925. The company claimed in said report and in its petition for resettlement, as well as in its appeal, that it is not liable for any tax on gross premiums for the period from Jan. 1, 1925, to May 6, 1925, on the ground that it is relieved therefrom by said Act of May 6, 1925. The question in this appeal, therefore, is, is the Provident Mutual Life Insurance Company of Philadelphia relieved from the payment of a tax on its gross premiums and assessments from Jan. 1, 1925, to May 6, 1925, by the provisions of said Act of May 6, 1925?

Said Act of May 6, 1925, which amends section 24 of the Act of June 1, 1889, P. L. 420, as amended by the Act of June 28, 1895, P. L. 408, provides in part as follows:

"It shall be the duty of the president, secretary or other proper officer of each and every insurance company, association or exchange, incorporated by or under any law of this Commonwealth, except companies doing business upon the mutual plan without any capital stock, and purely mutual beneficial associations whose funds for the benefit of members, their families or heirs, are made up entirely of the weekly or monthly contributions of their members and the accumulated interest thereon, to make report in writing to the Auditor General, on or before the first day of March, in the year one thousand nine hundred and twenty-six, in each year thereafter, setting forth the entire amount of premiums, premium deposits or assessments received by such company, association or exchange during the year ending with the thirty-first day of December preceding, whether the said premiums, premium deposits or assessments were received in money or in the form of notes, credits or any other substitutes for money, and whether the same were collected in this Commonwealth or elsewhere; and every such company, association or exchange shall pay into the State Treasury on or before the thirty-first day of March following the date for filing such report, in addition to any other taxes to which it may be liable under the first and twenty-first sections of this