83 W. Va. 600 | W. Va. | 1919
The principal inquiries in this cause are: (1), whether the sum of $471.00 placed in the hands of William D. Close, one of the defendants, by the intestate, Jonathan Root, was a mere deposit or loan, on the one hand, or, on the other, a
At the date of the inception of the transaction out of which 'this controversy arose, Jonathan Root, the decedent, was about seventy years old, unmarried, excentric and homeless, but ■neither destitute nor wholly unable to work. Until a comparatively short, time before that date, he maintained a nominal residence with his brother at a place in Preston County, W. Ya. and owned a small farm in that county but led a sort of wandering or migratory life. A great deal of his time was spent in the woods as an employee or in some other capacity, and, at one time, he seems to have held a position on the police force in the City of Baltimore. The brother says his home was Jonathan’s domicil for a period of about forty-five years. Shortly before he gave it up, he conveyed his farm to T. B. Root, a son of bis brother, for and in consideration of $1,-600.00, of which $600.00 was paid in cash and the residue made payable in ten equal annual installments represented by notes bearing interest. This nephew says the deed provided that such of the notes as should remain unpaid, at the date of the death of the grantor, were not to be paid. After having executed the deed, Jonathan Root resided with his nephew, the grantee, in the house on the farm, for about one week. Leaving that place, he stayed with his brother, the father of the grantee, about three weeks, and then left, saying he intended to go in search of a job. Whether he went immediately to Leadmine in Tucker County, the place of residence of William D. Close, does not appear.
• Close’s location at Leadmine- seems to have been substantially coincident with that of Root in point of time. In 1910, he either'purchased or established a small general store at that
Immediately after the death of Root, his relatives made a demand upon Close for the property left in his hands. He promptly delivered to them the notes, but declined to pay over the money or give up the horse, claiming the former as compensation for the care and maintenance of the intestate and the latter upon the theory of gift thereof to his wife by the intestate, within the period of his last illness. The
As the bill aptly alleges the indebtedness claimed and fraud in the disposition of the property, conveyance of the real estate to the debtor’s mother and mingling of his store goods with hers, it is hardly necessary to observe that the demurrer thereto, on the ground of adequacy of legal remedy, was properly overruled. It is fair to counsel for the appellants to say they do not here insist upon the efficacy of the demurrer. They do compalin, however, of the rejection of a portion of the answer, purporting to set up new matter constituting ground of affirmative relief. On an exception, the court partially eliminated seven paragraphs of the answer, upon the theory that the matter set up therein, as constituting ground for affirmative relief, was foreign to the purpose of the bill. The exception seems to have sought complete elimination thereof, but the court treated it as one seeking exclusion of such matters, only in so far as they constituted a claim for cross-relief and, only to that extent, sustained it. In so far as the aver-ments of the answer were merely defensive, they were allowed to stand and the cause made by the bill and the answer so restricted was determined upon its merits. The prayer for affirmative relief in the answer was based upon averments of title in the defendant, William D. Close, to the entire estate of Jonathan Root, the amount of money left in his hands, the horse, the purchase money notes and right of rescission of the deed conveying the farm to T. B. Root, upon some theory
The evidence relied upon to prove a contract between Root and Close, by virtue of Avhieh the latter was to have all of the property of the fonuer, in consideration of care, maintenance and support, lacks the definiteness and certainty that ought to characterize evidence relied upon for such purpose; and these qualities are not supplied by the situation and conduct of the parties and the surrounding facts and circumstances, relied upon for that purpose. The evidence consists largely of loose declarations of intention and purpose on the part of the intestate. SeAreral of the vfitnesses say he had frequently declared himself to be Avell satisfied and highly pleased with the new home he had found, contrasting his treatment by Close and his wife with that which he had received at the hands of his relatives. These declarations were accompanied by others to the effect that, if Close continued to treat him well, he intended to always remain with him and to leave him what property he might have at the time of his death. Close himself testifies that the money first received, $380.00, was
Nowhere in his testimony does he say, in so many words, that Root ever told him he should have the entire $471.00 for the services rendered Mm, but he quotes language used by Root to a little child, importing intent to bestow something on it or upon its parents. In addition to that, he says he claimed the money as Ms own, when it was demanded of him by the administrator. A brother of his testifies that Root had told him he had let Mm have $471.00 and that he intended to see that Close got all he had, not that he had given that money for services rendered and to be rendered. Close’s mother testifies to the same sort of a declaration. Witnesses for the plaintiff say Close did not claim the money, when it was demanded of him, but that he did claim right of compensation for the care, support and maintenance of Root, against Ms estate, sufficient in amount to cover the money in his hands. That the old man’s physical condition and personal habits were such as to render him an undesirable guest anywhere, is very well established. There is evidence tending to prove that he was afflicted with a loathsome disease which rendered his person unsanitary, and, at times, disagreeably oderiferous. He had an aversion for the cleansing properties of water and what is popularly deemed to be the comfort of clean clothes, and he seldom, if ever, had his hair or beard trimmed. His slovenly habits made him unwelcome in the homes of his relatives, but his brother says he allowed Mm to make his home his domicil for a period of forty-five years, but made Mm keep himself, clean. A short time before he gave up Ms brother’s home, his niece had trouble with him, on account of his slovenliness. There is a bare suggestion in the record, by way of hearsay, that the nephew to whom he conveyed his farm caused Ms bed to be moved out into, or over, a hog-pen, in his absence, but tMs is flatly demed by the nephew. The unkindness of his relatives, if any, and Ms estrangement from them do not prove a contract between Mm and the defendant Close. He may have been, in a sense, an out-cast, but,
Nor is it possible to disturb the trial court’s finding as to the amount due. The services of the old man and the use of his horse were probably nearly equal in value to the services rendered to him. The decree, however, allowed a credit of $225.00 for services rendered and burial expenses, the court being of the opinion that the services of the intestate partially discharged his obligation for lodging, board, stable room and feed.
The circumstances under which Close disposed of his property and the manner in which he did so preclude disturbance of the trial court’s finding of fraud in the conveyance of the real estate. It was a transaction between mother and son and in plain view of a claim of indebtedness against the latter, depriving him of the means out of which compulsory satisfaction thereof could be obtained, in the event of its estab
Upon these principles and conclusions, the decree will be affirmed.
Affirmed.