
    O’Bold’s Estate.
    
      Decedents’ estates — Claim of physician — Estoppel—Visiting list— Evidence.
    
    A physician rendered a bill in a lump sum of SI,250 to an executor for services to the decedent. Three years later at the audit he presented an itemized claim for SI,685.50. When he was on the stand he was asked whether he had made the regular charges for services rendered the decedent. He answered, “I have charged more, and I have charged less. I charge according to the ability of the man to pay me for my services.” The claimant offered in evidence a visiting list showing a record of all unpaid visits made to all his patients, including decedent. No objection was made by the executor to the admission of this list, and the claimant was examined in reference to it. Held, (1) that as the executor had not acted on the original bill, the essential element of estoppel as to the second bill was wanting; (2) that whatever objections might have been available against the visiting list as a book'of original entries, they were waived by the action of the executor; and (3) that the allowance of the larger claim of the physician by the aúditor and the court would not be reversed.
    Argued March 2, 1908.
    May 4, 1908:
    Appeal, No. 291, Jan. T., 1907, by C. J. Dellone, Executor, from decree of O. O. Adams Co., dismissing exceptions to • auditor’s report in estate of Vincent O’Bold, deceased.
    Before Mitchell, C. J., Fell, Brown, Elkin and Stewart, JJ.
    Affirmed.
    Exceptions to report of J. L. Kendlehart, Esq.,- auditor.
    The opinion of the Supreme Court states the case.
    
      Errors assigned were in dismissing exceptions to auditor’s report and in allowing Dr. B. N. Meisenhelder the sum of $1,685.50 and in allowing the auditor a fee of .$500.
    
      W. C. Sheely, for appellant.
    
      Donald P. MePherson, for appellee, was not heard.
   Per Curiam,

The first question undér the assignments of error is-the reasonableness of the claim of the physician for services rendered to the decedent. The claim was allowed by the auditor and the allowance was confirmed by the court. Both were in better position to judge of the validity of the claim than we are. But the physician after several demands upon him to furnish his account for services to the decedent, rendered a bill in a lump sum of $1,250. Three years later at the audit he presented an itemized claim for $1,685.50. So serious a discrepancy raised at once a presumption that the estate of the decedent was in danger of being fleeced, and called upon the auditor and court for a rigid examination and explanation, for the protection of the estate of the dead man who could no longer protect himself. And this presumption was not lessened by the testimony of the physician in response to the question : “ State whether or not the charges you have made for services rendered the decedent in this case are the regular charges for that kind of work ? A. I have charged more and I have charged less. I charge according to the ability of the man to pay me for my services.”

But the inconsistency of the claims for services though discreditable as showing a desire for special profit rather than for fair compensation, did not amount to an estoppel. The executor not having acted on the first bill the essential element of estoppel is wanting.

Where a witness or a party makes discrepant admissions or claims the result is for the jury, and in cases like the present for the auditor and the court. The auditor and court made an examination, and while it would have been more satisfactory if the physician had been held to a higher standard of professional ethics, we cannot say that the result was erroneous as a matter of law.

In regard to the evidence the learned court says: “The claimant in accordance with the practice of physicians kept a visiting list in which he made daily entries of his visits. It was not an independent record of visits and service done Mr. O’Bold, such as were excluded as book entries in Fulton’s Estate, 178 Pa. 78, but it was his record of visits in the regular course of his business as a practitioner of medicine, in which sense it made a record of not only the visits paid Mr. O’Bold but also all the unpaid visits made to all his patients.

“This visiting list being offered in evidence without objection, and accepted as correct by the accountant as to their date and number as it seems to have been ; and the claimant being called and examined in support of his claim without any objection at the time by the accountant — both the visiting list and the testimony of Doctor Meisenhelder were properly considered by the auditor in determining the question of this claim.”

Whatever objections might have been available against the visiting list as a book of original entries were certainly waived under this state of facts.

In regard to the auditor’s fee it is to be said as of the physician’s claim that the court below was in better position to determine the value of the services than we are, and its decision has not been shown to be so erroneous as to call for interference.

Decree affirmed.  