141 S.E. 444 | W. Va. | 1928
This suit was brought upon a foreign attachment against certain non-residents for the purpose of recovering for legal services rendered over a period of years. On a former hearing before this Court, a decree in favor of the plaintiff for $6,375.00, with interest, was reversed for want of necessary parties, and the case remanded for further proceedings.Hoge v. Blair,
It appears that Weeden J. Bryan was at one time the owner of large holdings of coal land in West Virginia — some 500 acres in Marion County. His business affairs became so involved that, in 1903, he and his wife conveyed the 500-acre tract to Lizzie B. Loller, their daughter and only child. Weeden J. Bryan died in 1907. Lizzie B. Loller continued to own the property until her death, August 3, 1911. Shortly after the latter's death an agreement was entered into by and between Cecelia Bryan, widow, S.W. Loller, surviving husband of Lizzie B. Loller, and Antoinette Blair, the only child and heir of Lizzie B. Loller, by which the entire estate of *32 Weeden J. Bryan and Lizzie B. Loller were divided or partitioned amongst them, and by virtue of which the fee of all the real estate in West Virginia was to be in Antoinette Blair, but the income therefrom was to be enjoyed jointly and equally by the three, and on the death of Cecelia Bryan and S.W. Loller their shares of said income were to pass to and become the property of Antoinette Blair. About the time of the transfer in 1903 Weeden J. Bryan had become involved in a great deal of litigation requiring the advice and services of an attorney. Plaintiff was called in at this time to render legal services; and, according to his bill, his services were sought from time to time, extending to June, 1913. The plaintiff's claim may be divided roughly into three parts: (1) services rendered in the life-time of Weeden J. Bryan, 1902 to 1907; (2) services rendered Lizzie B. Loller, 1907 to August 3, 1911, $6225.00; and (3) services rendered Antoinette Blair, August 3, 1911 to June, 1913, $2,300.00.
The issues center around the sufficiency of (1) the claim against Lizzie B. Loller; and (2) the claim against Antoinette Blair. As the numerous questions relative to the Lizzie B. Loller claim are dependent upon whether or not the same has been barred by the statute of limitations, we will consider first the application of the statute. This question was raised specially by plea and also on the demurrer of the personal representative of Lizzie B. Loller, deceased, to the bill. We held in a former hearing of this case that, on the case there made, such personal representative was a necessary party.Hoge v. Blair, supra. As a general rule no estate of a decedent can be proceeded against without the presence of the personal representative, and, when his absence appears, it is the duty of the court on its own motion, if not otherwise moved, to stop until the absent party is brought in. Hitchcox v. Hitchcox,
Counsel insist that under such a situation the statute ought not to apply; but no authority is cited to our attention as a basis for varying he unqualified language thereof, and, so far as we can discover, there is none to fit the exact case in hand. Exceptions in statutes of limitations are strictly construed and the enumeration by the legislature of specific exceptions by implication exclude all others. 17 Rawle C. L. p. 827. We are cited to no decisions of this Court that uphold the contention of the plaintiff. On the contrary, we find that this Court has held that, in a suit to subject lands descended to the heir to the payment of the debts of the ancestor, that the personal representative is a necessary party.ommerville v. ommerville,
The record here, as that in the former appeal, does not show assumption by the heir, Antoinette Blair, of the liability of her ancestor for the services sued for by the plaintiff. Hence, the remaining question relates to the claim of the plaintiff *35 against Antoinette Blair personally for services rendered her after the death of her mother in 1911. The handicap imposed upon him by section 23, of Chapter 130, Code, in proving his claim in the other branch of the case is removed. The plaintiff, together with his witnesses, establishes the rendition of legal services to the extent claimed by him against Antoinette Blair. But does he show his employment? Various letters from Antoinette Blair to him are shown in evidence. At the least they all serve to show that the activities of the plaintiff in connection with the protection of her estate were recognized by her and never repudiated. It seems that soon after her mother's death she, together with her grandmother, executed a power of attorney to Weeden J. Bryan, giving him full power and authority to appear for them, and in their name, place and stead to plead, answer and defend certain cases then pending both for and against the main West Virginia. It gave to him "full power and authority to do any and all things necessary to be done to protect our [their] interests in said chancery causes and under said leasehold estates", etc. It is shown by the plaintiff that he performed the services for which he seeks payment, not only with the knowledge of the attorney in fact, but in most instances at his express direction and request. Neither Antoinette Blair nor the attorney in fact takes the stand to deny this fact. Her counsel insists that, if the services were rendered by the plaintiff, it was a joint claim against Antoinette Blair and her grandmother. By the terms of the agreement referred to in the forefront of this opinion, entered into by Antoinette Blair, her father, L. W. Loller, and her grandmother, Cecelia Bryan, the two latter held life estates in the West Virginia realty, such estates to vest at their deaths in Antoinette Blair. They both are dead. So, Antoinette Blair ultimately received the benefit personally of the legal services of the plaintiff. Such services being rendered by her tacit consent, and under the express direction of her attorney in fact, the fruits whereof went to the estate held now in fee by her, she is in justice and equity and law liable therefor.
Holding these views, we reverse, annul and hold for naught *36 so much of the decree of May 21, 1927, as decrees to the plaintiff the sum of $6,481.61 against the estate of Lizzie B. Loller, under the plaintiff's "Itemized Statement No. 1", and the satisfaction thereof; and, as so modified, such decree is in all other respects affirmed.
Reversed in part; affirmed in part.