40 W. Va. 138 | W. Va. | 1894
Lead Opinion
At March rules, 1883, in the clerk’s office of Morgan county, Harrison Cann filed his, bill in chancery against the heirs of his father’s estate to enforce payment of his claim for services rendered as evidenced by a certain duebill bearing date the 28th day of April, 1880, calling for three thousand dollars for services rendered by the plaintiff “since he became twenty-one years of age.” The plaintiff made himself a party defendant to this bill as administrator of decedent.
The only appearance for the defendants is the answer of the infants Silas Largent and Elizabeth Largent, by their guardian ad Utem, T. N. B. Davis; an answer filed by George W. Ziler, husband of one of the heirs, and an exception endorsed on the commissioner’s report by the defendants Catherine Ziler,' Susan E. Ambrose, and Sarah Cann. The bill is
According to the law and the decision of this Court in the case of Rader v. Neal, 13 W. Va. 373, in this suit concerning his wife’s separate estate, George W. Ziler was not a necessary party thereto, and therefore the answer filed by him cannot be regarded, as he is too remotely interested in the subject matter to contest plaintiff’s claim in his own right.
The adult defendants who are proper parties to the suit did not think it worth' while to contest the allegations of the bill, but contented themselves with indorsing the following exceptions on the commissioner’s report: “The within report is excepted to by Catherine Ziler, Susan E. Ambrose, and Sarah Cann so far as it allows Harrison Cann a claim against the estate, amounting,. principal and interest, to four thousand nine hundred and twenty-four dollars and fifty cents, all of which should be rejected as improperly allowed.” The report being in accord with the allegations of the bill, to which these defendants made no- appearance, but allowed it to go uncontroverted so far as they were concerned, this exception should have been disregarded by the court, or promptly overruled, as by their silence in not pleading they have admitted the justice of the claim. As to them, neither the report of the commissioner nor any proofs are necessary to support a decree justified by their confession.
It is not so with the infant defendants, who are under the protection of the court, and whose interests must be regarded and preserved by it. The plaintiff has placed himself in an anomalous, though not inequitable position by making himself, not only as the administrator of Jacob Cann,- deceased, but also as the administrator of Elizabeth Largent, deceased, defendant to his own bill. If the claim on which
For the purposes of this suit under the law as we find it the due-bill relied on is worthless unless it can! be treated as an admission of indebtedness on the part of the decedent. In Chamberlayne’s Best, Ev. 486, it is said that a written admission, void as an obligation, is admissible as evidence, although the maker is deceased, and such admission be in the form of a book entry. This appears to be consonant with reason and justice if the admission as alleged is shown to be genuine and indisputable; but where its genuineness is attacked, and it is not sustained by a clear preponderance of legal testimony, its weight as evidence is destroyed, and it should be received with the'greatest caution, if at all.
The commissioner to whom the matter was referred finds in favor of the genuineness of the paper, but the court, on an examination of the evidence, overrules and disaffirms the report. Hence it devolves upon this Court to determine for
Examining the evidence, we find that the following nine witnesses introduced by the plaintiff, to wit, Lewis Allen, George Blakely, J. H. Buzzard, William P. Smith, H. Clay Spohr, Edmund Pendleton, Franklin Farris, Albetto Men-denhall and J. S. Duckwall (an attorney for plaintiff), testify more or less strongly that they are acquainted with the handwriting of Jacob Cann, deceased, and that they believe the signature tO' the controverted paper to be his. An other witness for the plaintiff, John W. Beclitol, who was well acquainted with decedent’s signature when written with a pen, testifies that he is unable to say that the signature in controversy ^written with a pencil is his genuine signature. On the other hand, the following seven witnesses, to wit, William J. Fleece, Andrew J. Davis, John J. Hertzel, Jefferson Vandersoll, John Frederick, William Z. Catlett, and Joshua Ziler, testify just as strongly, and some of them even more emphatically, that the controverted signature is not the genuine signature of the decedent, and some of them give good reasons for the belief that is in them. The latter are sustained by many of the circumstances surrounding the transaction. The plaintiff himself states that, although he was looking carefully through his father’s papers and books for something o'f the kind, he did not discover this due-bill until he had looked through this little account book three times, and not until some time after his father’s death; and he never made the discovery known to his mother or sisters until he had failed to get the latter to deed him the home farm, even though he promised them to will it to their children; and they testify that they did not know it until after this suit was brought, nearly two years after the death of their father, and then their first information did not come from their brother, although he had ample opportunity to inform them. On the contrary, he did inform one of his sisters, about six months after the death of his father, that he had examined his books and papers carefully, and
These witnesses certainly prove that there was á persistent effort on the part of Harrison Cann to get his father to deed him the home farm, even up until his death, which the decedent just as persistently declined to do. But there was no intimation at any time to any of these witnesses that said paper writing was in existence. The consideration for any such paper is left by the evidence in very great doubt, especially when the incompetent testimony is expunged from the record. In the case of Riley v. Riley, 38 W. Va. 290, (18 S. E. Rep. 569), Judge Holt, quoting from 17 Am. & Eng. Enc. Law, 336, states the law governing cases of this character as follows, to wit: “But where it is shown that the person rendering the service is a member of the family of the person served and receiving support therein either as parent,, child, or other near relative, a presumption of law arises that such services were gratuitous. * * * Therefore, before the person rendering the service can recover, the express promise of the party served must be shown, or suchi
John W. Nolan, a witness for the defendants, states “that about a year before the death of Jacob Cann he had a conversation with Harrison Cann, in which he asked him how he was getting along with his work, and he said, ‘Not very well; he was doing for the old man; that the old man was not doing much for him.' I made mention to Harrison that I would talk to the old man for him. He said he didn’t think it would do any good, but I could do as I pleased about that.” Afterwards, he says, he fell in with Jacob Cann, and says: “I asked him if he oughtn't to do something for Tip, and he told me he had done more for Tip than any of the balance of the children. Well, he said Tip had stock on the place. He said he knowed what Tip wanted. If he would deed him the home place, he would be satisfied and that he never would do while his head was above the top of the ground. He said Tip wanted all from the other heirs; poor John, he said, especially.” Tip was Harrison’s nickname.
William J. Fleece testifies that about the month of March, 1880, the plaintiff stated to him that he was getting up in years, and that he had worked a long time, and had no guaranty for it, and requested him to see his father, and ascertain whether he would leave him the farm before he left the world, or make some arrangement to compensate or pay him for his work. Harrison Cann made this request twice, and then the witness says: “I .went there, and found Mr. Cann there alone entirely. After talking over other things, I told
Taking the evidence as a whole, it is certainly a matter of impossibility to pronounce the controverted writing to be a genuine paper; but, the Court being of the opinion that neither the Circuit Court nor the commissioner has yet passed
Concurrence Opinion
(concurring):
The following state of facts is disclosed by this record as-alleged in the pleadings proved by the testimony and found by the commissioner: The plaintiff, Harrison Cann, was born on the 15th day of October, 1840, and became twenty one on the loth day of October, 1861. From that period up-to the death of his father, on the 5th day of August, 1881, a period of twenty years, he lived with and worked for his father at his home, and unmarried, on the promise and assurance made to him, by his father, who' was the owner of twenty four different tracts of land, that he would leave him by will the home place of about three hundred and twenty one- and three-fourths acres, and worth three or four thousand ’ dollars. In 1879-80 plaintiff became dissatisfied about the-uncertainty of getting the farm or any other compensation for his labor, and got several of his friends to talk to his father on the subject. The father told these intermediaries that plaintiff would be standing in his own light if he left home; that, if he remained at home, and took care of them, he always intended he should have the home place; that he-intended to compensate him. Thus induced, the plaintiff remained with his father and mother down to their death. At the death of the father was found his book of accounts, containing thirty seven pages of items of debit and credit entered for and against some twenty five or thirty different
“1880, April 28. Due Harrison Cann, three thousand dollars, for services since twenty one years of age. Signed Jacob Cann” — all in pencil.
Jacob Cann died intestate on the 5th day of August, 1881, ■leaving his widow, Susan Cann, and five children: Plaintiff, Harrison Cann; John, who died intestate and unmarried ■since his father; Catherine Ziler, wife of George W. Ziler; Elizabeth Largent, wife of Silas J. Largent -and Emma Ambrose, wife of Jesse H. Ambrose.
He left some personal property, about enough to pay all Just claims except that of plaintiff, and two thousand, eight hundred and fifty seven and three-fourths acres of land in twenty four separate tracts.
Plaintiff qualified as administrator on the 31st day of August, 1881, and found in the drawer of decedent the above account book. He tried to get his sisters to convey him the home place, but they failed and refused to go on with it .after three of them had signed the deed.
On the first Monday in March, 1883, he brought a credit- or’s bill against the heirs and administrator. In the bill, is contained a specification of his claim against the estate as follows: “The plaintiff further says that from the time he be•came twenty one years of age, which was on' the 15th day of October, 1861, up to and until his father’s death, a period of twenty years, in pursuance of a contract .between Ms father .and himself, he remained with his father, and worked for him as a common laborer on his father’s lands, his father promising- to pay him a reasonable compensation therefor. .And accordingly, in pursuance of the contract and understanding between his father and himself, his father, on the 28th day of April, 1880, executed to the plaintiff his note on -due-bill for three thousand dollars, ‘for services rendered him by the plaintiff since he became twenty one years of age.’ ” The four heirs, sisters of plaintiff, seem to have recognized to some extent the justice of plaintiff’s claim, and in
No one answered the bill except George W. Ziler, the son-in-law who had no interest, and he pleads1 the statute of limitations; but Mrs. L. Largent died during the suit, andher chil-dren5 both infants, answered in 1890 (April 7th), by their guardian ad litem. On the 4th day of April, 1883, an order of reference was entered, referring the cause to Commissioner J. E. Smith to report the claims, hear proof, etc. The-commissioner took and returned the testimony of thirtv one witnesses, filing his report on the 8th day of December, 3 S90. He finds and reports the due-bill of three thousand dollars to be a valid claim against the estate of the said Jacob Gann, deceased, and that plaintiff is entitled to receive the same, with interest from the 28th day of April, 1880. But be further reports that “Jacob Cann was satisfied with the consideration for said due-bill when he executed the same,‘by naming the consideration therein, which consideration is strongly supported and established as valuable by the idence herewith returned;” and the testimony of eight or ten witnesses, who knew his services rendered, put the value thereof at at least one hundred and fifty dollars per year for the twenty years. The report is excepted to by the two daughters and the widow. On the 27th day of November, 3 S91, the cause came on to be heard, and the court, being of opinion that the claim reported in favor of plaintiff was not sustained by the evidence, sustained the exception, disallowed the claim, confirmed the report in other respects, and gave-plaintiff leave to file an amended bill. Wlmt amendment the court deemed necessary does not appear, but I infer it related to the due-bill. This appeal was allowed plaintiff.. I propose to- consider the case first o-n the- theory that the entry found in decedent’s book of accounts is not only ineffectual as a testamentary paper, but is wholly nugatory for any purpose.
First. As to the pleading. Plaintiff’s claim for a quantum meruit against the estate is presented and set forth in
Second. Plaintiff has presented it in a court of equity, the proper forum, for he asks to have real assets descended, administered and applied in satisfaction of his claim. See Code (Ed. 1891) c. 86, ss. 3, 4.
Third. What is the nature and binding force of his claim, if made out by the proof? That there was an express agreement between his father, the decedent, and himself, that the father would devise him the “home place,” or otherwise make him a reasonable compensation for his services, if plaintiff would work for decedent on his lands, and take care of him for life; that he performed his part of the contract, but his father left his part unperformed, unless the duebill found entered on his book of accounts shall be held to be an execution of the contract on the part of the father; if not, he claims compensation for what his services shall be shown to be reasonably worth.
Fourth. What is the evidence of his claim? By the testimony of at least ten witnesses his claim is proved and established, and it is proved that in performing his part of the agreement he spent twenty years of the best part of his life, that is to'say from] twenty one to forty one, and that the deceased accepted these services knowing that plaintiff was relying upon his promise to compensate him in some testamentary way.
Fifth. On this mass.of testimony he had in his favor in the Circuit Court a quasi verdict in the finding and report of a patient, careful, intelligent commissioner, who knew and saw the witnesses face to face, and calls them “intelligent and unbiased.” This, in my view, for the practical administration of justice, establishes the agreement and the performing of it on plaintiff’s part, for such finding of fact by' the commissioner of what he was directed to ascertain and report has in general great weight. Here it bears the marks of deserving what the law accords, and the claim itself bears internal marks of being deserving, and of legal obligation. I do not think that the action of the’ Circuit
1. Silas J. Largent, a brother-in-law, and one of the defendants, says: That four or five months before his death Jacob Cann told him that if his son Harrison continued to live with him, and to do' as he had- done, he intended to leave him the home place and what was on it. This was said while plaintiff was dissatisfied because his father did not give him something to show for his proanise. That plaintiff did continue to live with his father thereafter until the latter’s death.
2. John Turner. He knew the family of decedent during the fourteen or fifteen years before his death. Plaintiff did most of the work; managed the farm. His services were worth two hundred dollars per year. Some four years before he testified, decedent, while on the home place, told him that Tip ( a nickname of plaintiff) was a good fellow, and when he was gone he intended to leave him the home place and all that was on it; that all the others bad left him. Afterwards there was some misunderstanding about it, and at the ihstance of plaintiff he saw decedent about it, to fix it
3. George Dunn. Plaintiff worked on the farm steadily, fixed up the dwelling house, stables, blacksmith shop, granary, wagon shed, the fences, and put the farm in good order generally. He was a good hand, worked steady, etc. Was worth, managing, working, etc., two hundred dollars per year. This, witness, who worked on the place, knew during a period of ten or twelve years. ‘
4. H. Olay Spohr. Had known the parties all his life. Forty-three years of age. Been there very frequently. Decedent marrid his half-sister. Had conversation ■about the matter;.the last time in 1880-81. Decedent told wittness Harrison, the plaintiff, was the’only one that was of any service to him, and he intended to reward him for it. He intended to give him the home place, and farming implements. He said, the last time the witness talked to him about it, that some one was trying to persuade plaintiff away from him, “but if he stays I will reward him well for it.” At another time he said he would give him the home farm if he stayed.
5. Jesse Ambrose is a defendant and brother-in-law. Had known plaintiff as living with decedent for more than sixteen years, farming for his father; blacksmithing, wagon-making, any kind of work about the farm; putting in crops, gathering, threshing and saving it. He worked at carpentering- — put up buildings on the farm. Farm contains about three hundred acres.
6. Isaiah J. Smith. Had been there frequently, from a day to a week at a time. Had known decedent forty four years, plaintiff twenty five years. Plaintiff was of good habits, sober and industrious. Did all kinds of work. Was worth three hundred dollars per year. In December before decedent’s death (August 5, 1881,) plaintiff complained to him that he had worked a number of years without ever having received any compensation, and that he would leave home if he did not get some satisfaction for the
7. Adam Spring. Plaintiff, during the latter part of Jacob Cann’s life, took charge of his affairs,' putting out and gathering crops, and attending generally to the labor on the farm. Was worth about one hundred and fifty dollars per year.
8. Susan Cann, the mother. Plaintiff was born, in 1840. Has never married, but has resided at home, doing all kinds of work; putting in. and gathering the crops; a good deal of work of all kinds; made fence, built stable, corn house, granary, made plows, harrows, wagons. He was an industrious, sober boy. He has spent all his best years on the place, twenty odd years since he has been his own man.
Plaintiff’s own testimony and a part of his mother’s are not given because incompetent. It was disregarded by the' commissioner. This has been enough to convince me that the father, a man of property, owning twenty four tracts of land, held out to the only child remaining with him to the last the inducement of testamentary compensation.
On it the son acted, and steadily, soberly, efficiently gave to his father’s service the first twenty years of his manhood,, reaching from twenty one well up into middle life. The father’s promise miscarried.. That he is entitled to a quantum meruit compensation, I put in evidence this long list of cases. Many of them show not only the general doctrine of legal obligation, but, what is most to my purpose, illustrate the mode, the means, and the force of what has been regarded as safe, satisfying proof in such cases: Grant v. Grant (1893) 63 Conn. 530 (38 Am. St. Rep. 379, note 393); Wainright v. Talcott, 60 Conn. 43 (22 Atl. 484); Reynolds v. Robinson (1876) 64 N. Y. 589; Eaton v. Benton, 2. Hill 576; William
Sixth. But there may be danger of abuse. In many cases there is a peculiar danger of abuse, requiring, therefore, peculiar guards against it; requiring the court to be on its guard not to let things done under the impulse of affection in discharge of a moral duty, usurp the place of a legal ■duty discharged, and thereby create a legal right. See Houck v. Houck (1882) 99 Pa. St. 552, and many cases of like kind. See 2 Pars. Cont. (8th Ed.) pp. 50, 51, notes, and casesi cited. It may in some cases have been held to create a quasi obligation to compensate, raised by law out of the special circumstances of particular cases, but by the great weight of authority has not reached that point. The law requires, under such circumstances, the sanction of an agreement to compensate, express or by inference fairly and clearly arising out of what is said and done by both parties, that if the one shall work and care for his aged parent so long as he shall live, he, the father, will compensate the son in some testamentary way; and if in pursuance thereof the son performs his part of the agreement, which the father adopts
Seventh. But it is not obnoxious to clause seven of section one of chapter 98 of the Code, which forbids the bringing of an action on an .oral agreement that is not to be performed within a year? The answer is, “No, because complete performance. om the part of plaintiff within the year, as by the death of his father, is' not impossible within the terms of the agreement.” And this answer was given in Peter v. Compton (1694) and has been adhered to ever since. See Peter v. Compton, 1 Smith, Lead. Cas. (9th Am. from 9th Eng. Ed.) 586, 591; Bish. Cont. § 1284; Kent v. Kent (1875) 62 N. Y. 560, Wellington v. Apthorp (1887) 145 Mass. 69, 72 (13 N. E. Rep. 10; Larimer v. Kelley, 10 Kan. 298; Jilson v. Gilbert, 26 Wis. 637.
Eighth. It is not barred by the statute of limitations, for the statute does not commence to run until the right of action accrues, and such right did not accrue until after the-promisor’s death, for that was the time fixed; and plaintiff continued the performance of his part of the agreement up to-rne happening of that e\<;nt. He then brought suit will tin two-years — five years being the bar. Kent v. Kent, cited above; Reynolds v. Robinson (1876) 64 N. Y. 589; Patterson v. Patterson, 13 Johns. 379; Price v. Price (1840) 1 Cheves, Eq. 167; Stone v. Todd (1887) 49 N. J. Law, 275 (8 Atl. 300). Where the promisee serves until the death of the promisor, this question presents no difficulty. It only arises where the promisor breaks or repudiates hist contract before death and dismisses the promisee. See Johnson v. Hubbell, 10 N. J. Eq. 332 (26 Am. Dec. 773, 785, note). See case of Jincey v. Winfield, 9 Graft. 708, 718. In this case the bar of the statute was applied to part of his claim, because he stopped ren--
Again, is this due-bill a testamentary paper? It is proven to be wholly in the handwriting of the deceased, Jacob Gann; the body of the instrument as well as the signature. And, taken in connection with what he declared he intended to do by way of compensating plaintiff for his services, and the fact that it was never delivered, it would seem that he intended it to take effect after his death.
The law is well settled that the form is immaterial, or the fact that it is also an obligation made on valuable consideration, if it was intended to take effect after death; it may be regarded as testamentary for purposes of probate. Ex parte Day (1851) Bradf. Sur. 476, 482; Pollock v. Glassell (1846) 2 Gratt. 439, 455. No, matter what the form given or intended, provided it be the inteniion of the deceased that it should operate after his death. Roberts v. Coleman, 37 W. Va. 143, 151 (16 S. E. Rep. 482). Whether the maker would have called this a testamentary paper or not is one question.
I concur in reversing the decree complained of, and in directing .the ascertainment of a quantum meruit compensation, 'although my own opinion is that that was sufficiently ascertained by the commissioner.
