
    Sprenkle’s Appeal. [Sprenkle’s Estate.]
    A gift will not operate as an ademption of a legacy, where the gift is not ejnsdem generis with the legacy, and there is no unity or indentity of purpose revealed as to the gift and legacy, and there is no evidence of intention on the part of the testator to put himself in loco parentis to the legatee.
    A testator left his housekeeper a legacy of $1000. At the date of the will he owed her six months’ wages. He died six months after the execution of his will. The auditor refused the housekeeper’s claim for tvages for the six months prior to the date of the will but allowed her for the six months subsequent to the will. Held that the orphans court-committed no error in overruling the auditor and allowing wages for the whole year.
    In the above case, the testator, on the day of his death, purchased a house for $2,750 and directed that the deed should be made to his housekeeper, 'who was his niece, a widow, and about forty years old. A claim of fraud, in procuring the conveyance, having been set up by the residuary legatees, as a set off to the legacy and claim for wages, the housekeeper testified that she did not know that the house was to be purchased for her until the deed was delivered, and that she had used no undue influence on the testator. The vendor of the house testified that he negotiated entirely with the testator, and the scrivener that he was directed by the testator to make the deed to the housekeeper. The evidence of the vendor and scrivener showed no fraud or undue influence exercised by anyone. Held that the claim to a set off could not prevail.
    May 17, 1888.
    Appeal, No. 56, July T. 1888, by Geo. W. Sprenlde et al., residuary legatees of David Sprenlde deceased, to review a decree of O. O. York Co., dismissing exceptions to an auditor’s report, at June T. 1887.
    Tbe following facts appeared from the report of the auditor, J. B. Strawbridge, Esq.:
    David Sprenlde died, testate, March 12, 1886, and letters of administration c. t. a. were granted to his son George W. Sprenkle. The will of the decedent, dated Sept. 24, 1885, contained, inter alia, the following clause: “ Secondly. I give, devise and bequeath unto my housekeeper, Lydia Landis, the sum of one thousand dollars and two beds and bedding complete of her own choice.” At the audit of the administrator’s account, Lydia Landis appeared and claimed for services, as housekeeper for decedent, $60, being $5 a month from April 1, 1885, to April 1, 1886. It was not denied that the services were rendered. The residuary legatees claimed that the legacy of $1000 given to Lydia Landis was adeemed by reason of a conveyance made to her on the day of the testator’s death. The auditor reported, inter alia, as follows:
    “A rule has prevailed that wherever a person by his will gives a legacy equal to or greater in amount than the debt he owes to the legatee, such legacy shall be a satisfaction of the debt upon the presumption that a man must be intended just before he is bountiful, and that his intent is to pay a debt and not to give a legacy.
    “A legacy to a creditor which is equal to or greater than his debt-, and which is not contingent or uncertain, is presumed to be a satisfaction of the debt. Wesco’s Appeal, 52 Pa. 195, and Horner’s Executor v. McGaughy, 62 Pa. 189.
    “ Especially is this the case where the interests of third parties would be affected, if it were not allowed to apply. As, in the will of testator, there are residuary legatees whose interests should be guarded, your auditor conceives it to be proper for him to find that Lydia Landis is not entitled to what David Sprenkle, the testator, owed her at the date of the will, to wit, $30.00, and tliis portion of her claim will not be allowed her in the schedule of distribution.
    “It cannot, however, be pretended that Mrs. Landis is not entitled to wages of labor that accrued subsequently to the date of the will, for how can it be pretended that a testator meant to pay by a legacy a debt which did not exist at the time of making his will ? This is in accordance with sound reasoning and such a conclusion is not without authority and precedent. Cranmer’s Case, 2 Salk. 508; Thomas v. Bennett, 2 P. Wms. 342; and Fowler v. Fowler, 3 P. Wms. 354. On April 1, 1886, there were six months’ wages, or the sum of $30.00, due Mrs. Landis. This sum is hereinafter accordingly awarded to her with interest thereon from April 1, 1886, the whole award in this behalf being $33.20.
    “It was, as before alluded to, likewise contended, before your auditor, by the accountant and other legatees, that the legacy of $1000.00 to Lydia Landis was adeemed in law because the testator on the day of his death bought from Iienry Hoke a house and lot of ground in the city of York for the sum of $2750.00 and caused the title to the same to be made to Mrs. Landis. The deed was offered in evidence and bears date the 12th day of March, 1886. Henry Hoke and wife are the grantors and Lydia Landis, the claimant, is the grantee. The deed is recorded in York county. The consideration in the deed is $2750.00 which was paid by David Sprenkle, the testator — $50.00 being paid on the day of the conveyance by the testator and the remainder, $2700.00, secured at the time by testator’s note and subsequently paid by the accountant as one of the debts of the testator.
    “The counsel for the accountant and legatees, Mrs. Landis excepted, argued ably and at considerable length to the effect that because the testator had, after the date of his will, purchased a house and lot for Mrs. Landis, that this worked an ademption of her legacy of $1000.00. The question of the ademption of a legacy is one upon which there have been many apparently diverse decisions in the courts of England and America during the last century. But a careful examination of them reveals carefully drawn lines upon which they are severally founded. It seems to be well settled that the ademption of a legacy is presumed when the legacy and the advancement are ejusdem generis, and the legacy not contingent nor uncertain as to the time of payment, and when the testator stands in loco parentis to the legatee. It appears that all these requisites should exist.
    “ Was David Sprenkle in loco parentis to Lydia Landis ? Your auditor thinks not. He was simply her uncle by marriage and was no blood relation. Nor is Mrs. Landis a young person. She is a widow and at least forty years of age. So nothing can be presumed on account of youth or tender years. One stands in relation of -parent to another when he is bound, to maintain that person by a natural or other contract. A person may adopt a child and thus become in loco parentis to the child. And one can place himself in that position by language in his will by which he may take upon himself the obligation of the relation; and when that intention does not appear on the face of the will, it seems that it is not allowed to offer parol evidence to raise the presumption; although, if the presumption is deducible from the face of the will, parol evidence should be received to confirm or rebut the presumption.
    “ This is about as far as the statute of frauds will permit us to go, since it is a first principle of law that a will cannot be explained by anything but itself.
    “A legacy to a stranger judicially imports mere bounty and the nature of a bequest cannot be changed by its conversion into a portion through the medium of parol evidence directly and in the first place applied to the motive for making the bequest. Roper on Legacies, 3d ed., *393, *396. Even had it been admissible, no testimony was Íiven to show that it was the testator’s intent that the legacy to Mrs. andis should be considered a portion.
    “In Wetherby v. Dixon, 19 Ves. 405, the Master of the Rolls said: ‘ It is admitted that generally a man is entitled to the benefits of as many gifts as another may see proper to bestow upon him. And I know of no general rule that the second must be understood to be a substitution for the former one and not an addition to it. But it has been reasonably enough presumed that a man does not mean to pay the same debt twice, and judges in equity have been in the habit of giving the name of debt to a portion given by a father to a child and thus a presumption has been raised against the intention of the father to give two portions. But to bring a case within that rule, the donor must be a parent or a person in loco parentis and the first gift must be in the nature of a portion to answer the description of a debt which is to be satisfied by the subsequent provision.’
    “ In instances where the bequest is general and made by a stranger or other person than a parent -not having placed himself in loco parentis and no intention legally appears that the subsequent advancement was made with a view to adeem the legacy, such advancement will not have that effect; for, since there is no such obligation upon the testator to provide for the legatee as subsists between the parent and child, no inference arises that he intended by a subsequent gift or advancement to perform any such duty in praesenti which he had provided for by the will. . . . Natural children are in the same situation, for the law does not acknowledge their relation as the children of their putative father, a situation which in this instance places them in a better condition than legitimate children, since a mere advancement to them will not prima facie be an ademption of a legacy to them by their father. 1 Roper, *382; Powys v. Mansfield, 6 Sim. 528. But, as above stated, David Sprenkle did not stand in loco parentis to Mrs. Landis. He was not her father. He was not her putative father even. She was not his adopted child. He was not her guardian. No declarations of his were offered to show that he intended to assume the relation of parent, and certainly the language of the will does not allow us to assume that he considered himself as occupying that relation. All the circumstances taken in the aggregate do not amount to a moral certainty that the testator considered himself as the father of Mrs. Landis, and as meaning to discharge the duties and fulfill the natural obligation of a parent to provide for a child. So far was the testator from seeming to want it understood that he considered himself in loco parentis to Mrs. Landis that he made her his hired housekeeper. He paid her $5.00 a month for her services rendered in that capacity.
    “In his will he says £I give, devise, and bequeath unto my housekeeper, Lydia Landis, the sum of one thousand dollars.5 Certainly it cannot be reasonably inferred from this language that the testator meant to assume the obligation of a parent to provide for a child in the person of Mrs. Landis. Henry Hoke, the grantor in the deed, testified that, on the day the deed in question was made to Lydia Landis and after the execution and delivery of the same took place, all of which occurred at testator’s house and in his presence, he, Ilenry Iioke, said to Mr. Sprenkle: ‘ David, I guess now we are all done.’ Then he, Sprenkle, put up his hand and said': ‘ O Henry, we are not done yet; I want a paper drawn up that she shall stay with me as long as I live, if she don’t die before me.’ She said: £ He needn’t fear for that. I will stay at any rate; we don’t know what will turn up.’
    “"William T. Williams, Esq., the scrivener, testified that, at testator’s house on the day of his death at the time the.deed was executed, he said to the testator: £ To whom is this deed to be made ?’ He told me : £ To my housekeeper, Mrs. Landis.’ Then' I asked him for the full name of Mrs. Landis and he gave me £ Lydia L.’ Justice Williams also corroborated Henry Hoke in the latter’s testimony as to the request of the testator that a paper should be drawn up that Mrs. Landis was to stay with him as long as he lived. This paper, however, was not drawn up for lack of time and that night David Sprenkle died.
    “Now, the learned counsel for the accountant and' legatees argued that because the legacy was given to Lydia Landis, ‘ the housekeeper,’ and the deed directed to be made to Lydia Landis, £ the housekeeper,’ that there existed a unity of purpose in the mind of the testator for the two acts, and that, therefore, the legacy had been adeemed. But to the mind of your auditor this is a strained presumption, the word £ housekeeper ’ seeming to be nothing more than a word used to designate the legatee in the one instance and the grantee in the other.
    “ He used the word housekeeper merely to point out distinctively the particular person upon whom he intended to bestow his bounty. And it must be borne in mind that neither in his will nor at the time the deed was made, did he say that in the one case he gave the legacy and in the other, the house and lot, to Lydia Landis ‘ for keeping house for himnor did he even say in either case that he gave the legacy and paid for the house and lot for Mrs. Landis £ because she was liis housekeeper.’ Had the testator even expressed such a purpose for the two acts, should it not have been shown by parol that he intended to substitute the gift of the house and lot for the legacy ? It seems to your auditor that if anything is especially to be presumed and gathered from the language of the testator at the time of the conveyance by Hoke and wife to Mrs. Landis, in addition to designating the person to whom the deed should be made, it is that the testator meant the house and lot to be a payment of future services to be rendered him by Mrs. Landis as housekeeper. This would seem to have been his thought and intention and doubtless occasioned the request that a paper be drawn up that sli'e was to remain with him as long as he lived. Not a word was even said that indicated the testator’s intention thus to wipe out his indebtedness to her for past services.
    “ His mind evidently was that she, now having a house of her own, might betake herself to it and dwell there. He, therefore, wanted a paper prepared by which she would oblige herself to remain with him and not go to housekeeping on her own account and under her own roof.
    "Nor was anything at the time of the conveyance said about the legacy to Mrs. Landis. No reference seems to have been had to it; and so far as the testimony in this audit goes, the testator in no way sought to couple the legacy and the gift of the house and lot by a unity of purpose for the two acts.
    “ Your auditor is of the opinion that the legacy of $1000.00 to Lydia Landis is not adeemed by the purchase for her by the testator of the house and lot not only because the testator did not stand in loco parentis to her, and also because no unity of purpose was shown for the two acts, but also for the additional reason that the house and lot are not ejusdem generis with the pecuniary legacy. Vide 1 Roper, *261, *380, *384; Dugan v. Hollis, 4 Md. Ch. 139; Swoope’s Appeal, 27 Pa. 58, and Monestier’s Estate, 14 W. N. C. 392.
    ££ Lydia' Landis is a mere legatee, and it was never contended that a subsequent provision for a legatee does of itself operate as an ademption of the legacy. Wetherby v. Dixon, 19 Ves. 405, supra.
    " Your auditor, holding the views above set forth, feels constrained to award to Lydia Landis, in the schedule of distribution, her legacy of $1000.00, less collateral inheritance tax, with interest from March 12, 1887.”
    The auditor accordingly awarded the amounts allowed above to Mrs. Landis; the rest to the legatees. The whole estate distributed amounted to some $7000. His entire estate, both real and personal, amounted to some $16,000.
    The legatees filed the following exceptions:
    “1. The auditor erred in holding that parol evidence was inadmissible to raise the presumption that the testator stood in loco parentis to Lydia Landis unless the intention to stand in that relation appeared on the face of the will; and in holding that no evidence was adduced to show such intention; and that the relationship did not exist.”
    “ 2. The auditor erred in holding that the testator by paying the $2750.00 for Lydia Landis, ‘he meant it to be a payment of future services to be rendered him by Mrs. Landis as housekeeper and that such payment was not ejusdem generis with the pecuniary legacy.”
    “ 3. The auditor emed in entirely ignoring and disregarding the question of undue influence and fraud committed by Lydia Landis upon the testator in the purchase of the $2750.00 property, whereby a legal and equitable set off and defence was created against both the legacy and claim for wages.”
    “ 4. The auditor erred in awarding to Lydia Landis $33.20 for wages.”
    “ 5. The auditor erred in awarding to Lydia Landis $1007.00 in payment of her pecuniary legacy.”
    “ 6. The auditor erred in awarding to William Thompson, Register, $50.00 for collateral inheritance tax on said legacy.”
    The following exceptions were filed on behalf of Lydia Landis:
    “ 1. The auditor erred in not awarding to Lydia Landis the full amount of her wages.
    “ 2. The auditor erred in finding that the amount of Lydia Landis’s wages due at the time of making the will was paid and discharged by the legacy bequeathed to her.”
    The exceptions were disposed of by the court in the following opinion by Latimer, J.:
    “ The auditor was right in deciding that the legacy was not adeemed, for several reasons: The gift was not ejusdem generis with the legacy. There was no unity or identity of purpose revealed. There was no evidence from which the auditor could possibly have found an intention on the part of testator to put himself in loco parentis to the legatee. No declarations of the testator,.contemporaneous with or prior to the gift, indicating any intention that the gift should be in place of the legacy, were proven nor any facts indicating such intention.
    “ The residuary legatees contend that the gift of the house and lotto Mrs. Landis were procured by her by fraud and by undue influence exerted by her on the donor, that thereby the money thus procured by her to be paid for this property for her use, became an indebtedness by her to the estate which the administrator c. t. a. might recover in an action for money paid, laid out and expended for her use, and that this indebtedness is an equitable set-off to her claim in this distribution for her legacy and the wages due her.
    “This branch of the case was but meagerly presented at the argument and none of the authorities cited sustain the position taken, or bear any resemblance to this case. In fact, no case of undue influence as affecting the validity of a gift inter vivos was cited at all, and no authority produced bearing on that subject.
    “ In Hoghton v. Hoghton, 15 Beav. 278, cited with approbation in Miskey’s Appeal, 107 Pa. 631, it is said that ‘ whenever one person obtains, by voluntary donation, a large pecuniary benefit, from another, the burden of proving that the transaction is righteous, falls on the person taking the benefit. But this proof is given if it be shown that the donor knew and understood what it was that he was doing. If, however, besides obtaining the benefit of the voluntary gift from the donor, the donor and donee were so situated toward each other that undue influence might have been exercised by the donee over the donor, then a new consideration is added and the question is not whether the donor knew what he was doing, but how this intention was produced; and, though the-donor was well aware of what he did, yet if his disposition to do so was produced by undue influence, the transaction would be set aside. In many cases the court, from the relation between the parties to the transaction, infers the probability of such undue influence having been exerted.’
    To the same effect are ‘Worrall’s Appeal, 110 Pa. 349; Greenfield’s Estate, 14 Pa. 489 ; Darlington’s Appeal, 86 Pa. 518.
    “ The rule thus laid down applies especially when the relation of parent and child, guardian and ward, attorney and client, or husband and wife, exists between the donor and donee. But it applies equally when the facts show the existence of powerful influence and control on the part of the donee over the donor growing out of any other relation in life. See Huguenin v. Basely, 3 Leading Cases in Equity, 94, and especially the American Notes, page 124 et seq.
    “ Mrs. Landis was the housekeeper of Mr. Sprenkle. She had lived with him in that capacity eleven years, ana, according to the testimony of Dr. Both, she exercised considerable influence over him. The situation and circumstances of their relation were of a character to lead naturally to the possession of great influence by her in his enfeebled condition and weakened intellect — though Dr. Both testifies that he was not at all incapacitated mentally for the transaction of business. In any proceeding in which the fairness and freedom from undue influence of the gift made by him to her were open to attack, the burden of sustaining the gift would be on her.
    “Assuming that the gift can be attacked in this proceeding in the manner in which the attack has been attempted before the auditor and this court, how does the case stand on the evidence. Mrs. Landis claiming against a dead man’s estate was not a competent witness to testify in her own behalf as to any fact occurring in the donor’s lifetime. Act May 23, 1887, § 5, pi. (e), Purd. Dig. 2199. But she was called by the other side as under cross-examination and was thus made a fully competent, though not necessarily a credible, witness. She denies any knowledge, prior to the delivery of the deed, that the purchase of the house and lot was for her, and positively denies that she used any influence whatever to procure the gift, though admitting that Mr. Sprenkle had talked to her of his intended purchase. So far she is not contradicted. The testimony of Hoke the vendor shows that Mr. Sprenkle had negotiated himself for the purchase, and that of Williams shows that Sprenkle had directed the deed to be made to her, while the evidence of neither shows any agency or influence on her part in the matter. She is not materially contradicted in any part of her testimony — the alleged contradictions being in matters of little importance. No actual fraud committed by her in the matter is alleged or proven. On this evidence, meager as it is, but probably all that could be adduced, the auditor would not have been justified in finding that the gift was procured by undue influence.
    “ This view of the case renders it unnecessary to decide what would be the result, as affecting this distribution, if the evidence showed that the gift was improperly procured.
    “ But the auditor erred in finding that the legacy was a payment of the amount due her for wages at the date of the will. Horner v. McGaughy, 62 Pa. 189.
    “ The exceptions filed on behalf of Mrs. Lydia Landis are sustained. The exceptions on behalf of the residuary legatees must be dismissed.
    “And now, to wit, April 17, 1888, it is decreed that the sum of $33.20 be awarded to Mrs. Lydia Landis m addition to the amounts awarded to her by the auditor’s report and that sum be deducted pro rata from amounts awarded to the residuary legatees, and with this amendment the auditor’s report of distribution is confirmed.”
    
      The assignments of error specified the action of the court, 1-6, in dismissing the exceptions of the residuary legatees; and, 7 and 8, in sustaining those of Lydia Landis.
    
      E. W. Spangler, for appellants.
    Ademption is a question of intention. 1 Roper, § 329. When the amount advanced is greater than the legacy, it is an ademption. Ib. 370. In the absence of testimony as to intention, the presumption is in favor of ademption-. Ib. 372.
    Parol evidence is admissible to show that a double portion was not intended, and that a legacy was adeemed or satisfied by the testator in his lifetime. Miner v. Atherton’s Executors, 35 Pa. 528; 2 Redfield on Wills, 539, 541; 1 Roper, 396, 408.
    In ademption, relationship is not absolutely essential. Kirk v. Eddowes, 3 Hare, 509; Booker v. Allen, 2 Russ. & Mylne, 270; Lloyd v. Harvey, 2 Russ. & Mylne, 310; Hine v. Hine, 39 Barb. 507; Roper, 385, 7, 8.
    In Gill’s Est., 1 Parsons, 141, it was held that where a legacy was given to a stranger, a presumed ademption can be shown on the face of the will; or by parol evidence. See, also, 2 Williams on Executors, 1439, note K; and Story’s Eq. Jur., § 1118, for statement of the unsatisfactory reasoning for the rule as to relationship.
    
      Nor need the subsequent provision be strictly ejusdem generis with the legacy to work an ademption. Swoope’s Ap., 27 Pa. 58, 61; Monestier’s Ap., O. C., 14 W. N. C. 392; Richards v. Humphreys, 15 Pick. 140; Paine v. Parsons, 14 Pick. 318; 2 Williams on Executors, 1441, note S.
    Independent of the ademption, the fraud proven is a complete defence to the payment of the legacy and the wages claimed. Hassinger v. Solms, 5 S. & R. 4; Greeves v. McAllister, 2 Bin. 591; Hind v. Holdship, 2 Watts, 104; Harlan v. Harlan, 20 Pa. 303. Consequently, such an indebtedness by her to the estate is a legal and equitable set off and defence to both legacy and wage claim. Thompson’s Ap., 42 Pa. 345, 357.
    The authorities cited by the court as to gifts inter vivos are in our favor and not against us. This court in all those cases struck down fraud with a relentless hand. Miskey’s Ap., 107 Pa. 611; Worrall’s Ap., 110 Pa. 349; Greenfield’s Est., 14 Pa. 489.
    The relation between the testator and Mrs. Landis were such that equity will require good proof from the gainer of the transaction. The rule applies to uncle and nephew. 2 Dev. & Beat. Eq. 241. To persons standing in the relation of quasi guardian, Story’s Equity, 319 ; to agents, lb. 315; to medical adviser and patient, Dent v. Bennett, 4 My. and Cr. 277 ; to servants, Osmond v. Fitzroy, 3 P. Wms. 129; Whitehorn v. Hines, 1 Munford, Va., 557; to transactions with persons whose minds are weakened with age, although still compos mentis; 3 L. C. Eq. 138 ; to cases of supposed friendship, lb. 139, 94, 124, and American notes.. The question is not vt'hat was the testator’s intention in signingthe deed, but how was that intention produced. See also Boyd v. Boyd, 66 Pa. 283.
    Although Mrs. Landis was called as a witness by us, we were not bound or concluded by her answers. The proviso in the Act of April 15, 1869, and May 23, 1887, says: “ But the party calling for such examination, shall not be concluded thereby, but may rebut it by counter testimony.” See also Brubaker v. Taylor, 76 Pa. 84; [Bank v. Davis, 6 W. & S. 285; Pa. R. R. v. Fortney, 90 Pa. 323.
    That the orphans’ court has full power to redress this injury there can be no doubt. Dundas’ Ap., 73 Pa. 474; Hammett’s Ap., 83 Pa. 392; Phillip’s Admr. v. R. R., 107 Pa. 468; Williamson’s Ap., 94 Pa. 236; Otterson v. Gallagher, 88 Pa. 355; Otterson v. Middleton, 102 Pa. 78; Horner v. Hasbrouck, 41 Pa. 180.
    
      W. F. B. Stewart, with him H. C. Niles and G. E. Neff, for appellee.
    Where a parent in his will provides a legacy for his child and subsequently makes it a gift ejusdem generis with the legacy, and equal to or greater than the amount of the legacy, the law presumes the subsequent gift to be in lieu and satisfaction of the legacy. The same is true where one standing in loco parentis to another does the same thing. But the law will not presume this unless the relation is either admitted or proven. Langdon v. Astor’s Exrs., 34 N. Y. 34.
    In this case Mrs. Landis, the appellee, was not a child nor grand-child of the testatoi’, and the auditor and the court have both found that the testator did not stand in loco parentis to her. This finding will not be disturbed except for flagrant error. Burroughs Ap., 26 Pa. 264; Gilbert’s Ap., 78 Pa. 266.
    The subsequent gift must be ejusdem generis with the legacy. Here the legacy was one thousand dollars in money, and the subsequent gift was a house and lot. The one was not ejusdem generis with the other and hence ademption did not take place. Monestier’s Est., O. C., 14 W. N. C. 392; Swoope’s Ap., 27 Pa. 61; Burnham v. Comfort, N. Y., 11 Cent. R. 447.
    As to the questions of fraud, undue influence and contradictions of Mrs. Landis, a complete answer is to be found in the opinion of the court dismissing the exceptions.
    Oct. 1, 1888.
   Per Curiam,

A careful examination of this case satisfies us that there is no error in the decree of the court helow, and that the exceptions to it cannot be sustained. The gift was well established, and if the donor intended to substitute it for the legacy to the appellee, such intention was not manifested by any act or word which he either did or said. The argument of the learned counsel for the appellants is founded neither upon fact nor sound presumption, whilst the opinion of the court is brief, lucid and legal, and ought to have been satisfactory to both parties.

Decree affirmed at the costs of appellants.  