65 W. Va. 712 | W. Va. | 1909
Bertha Cooper, an infant who sues by next friend, her mother, Cettie Purkey, files her bill against the administrator and heirs of John A. Cooper, deceased, to specifically enforce a contract, alleged to have been made for her benefit between said Cooper ■and her mother, against said estate, for her support until she arrives a.t “full age.” The facts are these: John A. Cooper died intestate and unmarried about the last of December, 1903, leaving brothers, sisters, nieces and nephews as his heirs at law and dis-tributees. His personal property being insufficient for the paj'ment of his debts, his administrator brought a suit in the circuit court of Randolph county for the sale of his land to pay them. After the payment of debts, there remained in the hands
Cooper was the father of a bastard child, who is the petitioner and appellee, Bertha Cooper, begotten, of Gettie L. Vance. On the 8th day of May, 1897, in a bastardy proceeding in the circuit court of Randolph county by the county court of Randolph county, he was adjudged.to pay to the county court, for the maintenance of the child, the sum of $60 and the costs of the suit, and the sum of $60 per annum for six successive years, payable on the 10th of May of each year, unless the child should sooner die, the first of the six payments falling due on the 10th day of May, 1898. He was required to give bond in the penalty of $800 with security for the faithful performance of the court’s judgment, and did so on May 13, 1897.
On the 22nd of November, 1897, he appeared before the county court, by counsel and moved to be released from the original bond, and to be allowed to substitute another bond in the penalty of $400 for the performance of other conditions; and this was allowed to be done. This order permitting it contains the following recital: “And it appearing to this Court that said John A. Cooper has taken charge of said child, with the consent of said Gettie L. Vance to keep and maintain it, at his own expense, and has this day tendered a bond in the penalty of Four Hundred Dollars executed by himself with Christian Cooper, Asa Cooper and George W. Cooper as sureties, conditioned that he will maintain said child. It is ordered that said bond be accepted in lieu of the bond executed by him before the circuit court, and that he and his sureties in said original bond be released from all liability under the same.”
Cooper then too'k the child and placed it in the home of his brother who kept it, and took care of it, until April next after the death of said Cooper. The child’s mother, whose maiden name was Vance, having in the meantime married one George F. Purkey, then took it to her own home.
Pending the suit by the administrator for the settlement of Cooper’s estate, plaintiff filed her petition therein, against the heirs of John A. Cooper, deceased, claiming the balance of the estate after payment of debts, on the ground that .the alleged agreement made her his adopted daughter; and if it did not amount to adoption, it at least entitled her to support and main
Defendants demurred to and answered the petition. In the answer they admit that Cooper had taken care of, and provided for petitioner at the home of a relative of his for about six years; but they deny the alleged agreement that he was to take care of her for any longer time than the six years during which he was obligated by the judgment of the circuit court to pay $60 a year to the county court for her maintenance. They also deny that he gave her his name or that he ever promised to adopt her as his child.
The demurrer does not appear to have been directly passed upon. On the 10th of September, 1906, the two causes -were heard together, the petitioner’s cause being heard upon the bill, answer and replication and the depositions of witnesses taken on behalf of both parties; and the court decreed petitioner her reasonable support out of said Cooper’s estate, and directed the special commissioner to pay the funds in his hands belonging to the estate over to the general receiver of the court; and the general receiver was directed to lend it, subject to the future order of the court. The. cause was referred to a commissioner to ascertain what, would be a reasonable sum to be paid annually for
The. decree passing upon the merits, in effect, overrules the demurrer. Bantz v. Barnett, 12 W. Va. 772; Craig v. Craig, 54 W. Va. 183. It is insisted that it should have been sustained. We do not think so; the bill avers sufficient matter to entitle plaintiff to some relief, even if not the full relief prayed for; and, under the prayer for general relief, she might obtain some other relief. The averments of the bill, if sufficiently established by evidence, would entitle plaintiff to a decree for her yearly support until she arrives at the'age of twenty-one years, provided she live so long. Equity has jurisdiction, and the bill is good on demurrer. Ralphsnyder v. Ralphsnyder, 17 W. Va. 28; Rex v. Creel, 22 W. Va. 373.
The bill alleges that after said Cooper promised to support the child he was released from paying the $60 a year to the county court. This is sufficient consideration to support the promise. Billingsley v. Clelland, 41 W. Va. 234; Jangraw v. Perkins, 77 Vt. 375.
Defendants admit that.,John A. Cooper made a contract to support plaintiff; but allege that it bound him for a period of six years only. They deny that he made the contract alleged in the petition. This brings us to a consideration of the evidence.
The material allegations of the bill.are denied, and the burden of proof rests upon plaintiff. The child’s mother, who is also her next friend, and Leslie Harding, deputy clerk of the county court, are the only witnesses who testify in behalf of plaintiff. The latter was introduced only to prove the loss of the second bond executed by Cooper before the county court, and inability to find it.
The testimony of plaintiff’s mother was objected to on account of the relationship existing between witness and deceased.
This shows her to have such an interest in the result of the suit as disqualifies her as a witness to prove the contract between herself and John A. Cooper, deceased. The common law rule excluding parties in interest from testifying in any case, embraced all persons having any interest at stake in the suit whatsoever, even though it extended only to a liability for costs; and included a, proNiein ami, guardian, executor, &c. 1 Greenleaf
on Evidence, sec. 347; 3 Jones on Evidence, sec. 745; 30 A. & E. E. L. (2nd Ed.) 911; Clutterback v. Huntingbower, 1 Strange 506; James v. Hatfield, Id. 548; Hopkins v. Neal, 2 Id. 1026; Cogbill v. Cogbill, 2 Hen. & Mun. 467.
Section 3945, Code 1906, removing the common law disability, excepts testimony of a witness, “in regard to any personal transaction or communication between such witness and a person at the time of such examination deceased, insane or lunatic, against the
Plaintiff has failed to establish a prima, facia case, and it is therefore xinnecessary to discuss the objections made by plaintiff to defendants’ evidence. If we could see that petitioner’s evidence was sufficient to entitle her to relief if her pleadings were made to conform thereto, we might, according to the practice of this Court, remand the cause with leave to plaintiff to amend her petition. But it clearly appears that she can not aid her cause even by an amendment.
We reverse the decrees appealed from in so far as they give petitioner any recovery against the estate of John A. Cooper, deceased, and will enter a decree here dismissing appellee’s petition. *
Reversed and Petition Dismissed.