120 S.E. 762 | W. Va. | 1923
The decree adjudges valid a note of $1,000, and directs its payment out of the estate of C. P. Shinn, deceased.
The sole controversy is over the validity of this note. The bill is by the executor, is for the purpose of carrying out the provisions of the will, and alleges a deficiency of personal estate for the payment of the debts including the note in question, and prays for a sale of a part of the real estate for that purpose; a settlement of the executorial accounts of plaintiff and an ascertainment of the widow's rights in the estate; and for general relief. The answer denies that there is a deficiency of the personal estate, and avers that there is more than enough personal estate to pay the just debts; and denies that decedent owed the note in question, or that he ever executed it, and avers that if G. W. Shinn has such a note there was lack of consideration. The genuineness of the signature of C. P. Shinn, the maker of the note, is denied by affidavit filed. Upon the coming in of the answer the cause was referred to a master in chancery to report, among other matters, whether the note held by G. W. Shinn was a valid debt against the estate. The note was the only contested claim against the estate, and the evidence in favor of and against its validity was taken before the master, who in due time reported it as a valid claim against the estate. Exceptions thereto by the contesting devisees were overruled and the decree, complained of, entered.
The errors assigned are: (1) overruling the demurrer of Aurora Westfall and others to the bill; (2) decreeing the $1,000 note held by G. W. Shinn a valid and existing obligation against the estate of C. P. Shinn, deceased; (3) in *294 overruling the exceptions to the commissioner's report; and (4) rendition of the decree of November 25, 1922.
The third and fourth assignments of error are necessarily covered by the second error assigned. The exceptions to the commissioner's report are to the finding of the validity of the $1,000 note; and finding that the real estate will not in five years rent for a sufficient amount to pay the indebtedness. The sufficiency of the rental within that time depends upon whether the $1,000 note shall be paid.
C. P. Shinn died August 3, 1921, leaving a will dated April 27, 1921, in which he directed payment of his just debts, and gave and devised his entire estate to Allena Shinn Parsons, Geo. W. Shinn, Emma Zora Shinn Nuna, Oda Shinn Lysle, Odelia Shinn Reed, Jessie Shinn Elliott and Aurora Shinn Westfall, each to share equally. The devisees are children of the deceased. His wife, Ellen Shinn, survived. S. F. Shinn, named as executor, who qualified, is a near relative of the deceased. After the qualification of the executor, G. W. Shinn notified him that he held a note against the estate for $1,000. The personal estate in the hands of the executor amounted to $1,592.71, from which he expended $769.52 for funeral expenses and like charges, leaving a balance of $823.19 in his hands, and it became apparent that if he had to pay the $1,000 note together with other outstanding claims and his commissions, he would be compelled to resort to the real estate which consisted of about 54 acres of land in Roane county and a house and lot in the city of Parkersburg. This suit was then instituted by him for the purposes above set out.
It is asserted that the demurrer should have been sustained because the bill fails to allege that plaintiff is acting as executor; and that it does not show that the personal estate is insufficient for the payment of the debts. The bill is brought by the executor, exhibits the will and alleges that he qualified as executor of the estate on the 23d of August, 1921, and exhibits a certificate of his appointment and qualification as such. The answer admits that the plaintiff is duly qualified "and is now acting as executor of said last will and testament." The bill sets out the amount of personal property *295 which came into the hands of the executor and alleges that the indebtedness claimed against the estate, naming the debts, is in excess of the personal estate and that it will be necessary to resort to the real estate for payment. The demurrer to the bill was properly overruled.
The point is raised that it was error for the court to refer the cause to a commissioner to ascertain the validity of the $1,000 note; that the answer of contestants of the note raised the question of its genuineness and validity; that this was an issue which should have been decided by the court before reference to a commissioner. No objection appears to have been made to the order of reference, and no question of premature reference, raised until after the decree was pronounced and the cause reached this court. The parties appeared before the commissioner and introduced their evidence touching upon the validity of the note, and both sides have had a full and complete hearing on the matter in litigation. It is true that a cause cannot be referred to a commissioner for the purpose of permitting the plaintiff to establish the allegations of the bill, and where the matter in issue is one for a decision by the court and not by a commissioner. However, where the reference to the commissioner is made without objection and where it is apparent that the parties have had a full and complete hearing before the commissioner, the technical objection comes too late after an adverse decision on the merits. Jones v. Rose,
We now come to the next question involved, whether the note is a valid obligation against the estate. The answer denying the validity of the note is not sworn to; but the affidavit of Mrs. Yager says that the signature of C. P. Shinn to the note is not his signature, and she is one of the answering defendants. This puts the genuineness of the signature at issue. Sec. 40, chap. 125, Code. Logically, the first question to be determined is under this issue. If the note be not that of C. P. Shinn, and his name thereto is a forgery, then the question of the consideration therefor and all others arising by reason of the note are moot questions. The note is as follows: *296
"$1,000.00 Ripley, W. Va., Nov. 2, 1920.
At my death, I promise to pay to the order of G. W. Shinn, One Thousand Dollars, For value received, negotiable and payable at The First National Bank of Ripley, West Virginia.
C. P. SHINN."
C. P. Shinn was very aged at the time of his death, and about the year 1916 owned considerable land in Roane county, a large part of which he disposed of prior to his death, and at the time of his death he owned the 54 acres described in the bill. He was a pensioner of the federal government, and received oil and gas rentals from some of his lands. About the year 1916, he purchased a house and lot in Parkersburg, moved there and continued his residence in that city until his death.
To sustain the note, G. W. Shinn and his two sons, R. A. Shinn twenty-five years old and C. O. Shinn thirty years of age, testified that on the day of the execution of the note C. P. Shinn, the maker thereof, was at Ripley, Jackson county, attending an election, and called them into a ware room of C. O. Shinn's grocery store, where R. A. Shinn prepared the note at the request of his grandfather and where his grandfather signed it in the presence of all of them. They saw him sign the note, and detail the consideration therefor. It appears from their evidence that about 1916 on another occasion in the same wareroom, C. P. Shinn had executed a note to G. W. Shinn for $500 for borrowed money and that this former note entered into the consideration of the new note. According to their evidence G. W. Shinn had been looking after his father's interest in the farm lands a portion of which had been rented since the old gentleman moved to Parkersburg, and that the additional consideration above the old note was services so rendered. It appears also that each of the two young men had rendered some services to their grandfather in transporting him to and from Parkersburg, one to the amount of $10, and the other to the amount of $30, and these sums were a part consideration of the note, and direction was given to their father by the grandfather to settle these small amounts with his two sons, which he did after the note was *297 executed. It will be observed that this evidence goes not only to the execution of the note, the genuineness of the signature, but also to the consideration. It is contended by appellants that this evidence in its entirety was incompetent, being the detailing of personal transactions with the deceased. Proper objections and exceptions were taken to its introduction. The evidence of G. W. Shinn is incompetent and should not be considered. It is not so clear that the evidence of the two young men, the one who prepared the note and the other who witnessed the signature and transaction, is incompetent. It is argued on behalf of the appellants that they had an interest in the making of the note by reason of the claims for services which they had against the old gentleman for the $10 and the $30 sums, and that they stand in the shoes of assignors of these sums to their father who paid them. On the other hand the appellees argue that these small debts have been paid by the father before suit, that the two sons have no interest in the result of the litigation, are not and never were assignors of the debts to their father, and therefore their evidence is competent and not prohibited by sec. 23, chap. 130, Code, which says:
"No party to an action, suit or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person, derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased,"
However, the genuineness of the signature is supported by evidence about which there is no controversy. Quite a number of experts were introduced by both sides who testified that the signature is genuine, and to the contrary. The cashiers of the three banks in Ripley, all familiar with C. P. Shinn's signature and with whose banks he had transacted business, testify that the signature is genuine. Straley, cashier of the First National, at which the decedent kept his account for many years, had known him all his life and knew *298
his signature well. These witnesses had been in the banking business at that place from eighteen to thirty years. The contestants of the note, children of the maker, with the exception of two or three, say the signature is not that of their father, and give their reasons therefor. Jones, an experienced banker of Parkersburg and an expert, says the signature is not genuine, judging by comparison with other true signatures. On the other hand a portion of the devisees and others who were not interested and who were non-experts say the signature is genuine. The note itself and many other writings to which Shinn attached his signature, and which signatures are agreed to be genuine, were before the commissioner and the lower court, and are now before us. Without attempting to analyze the expert and non-expert testimony, we think the finding of the commissioner and the circuit court on this point cannot be disturbed. Both are entitled to peculiar weight. Striking out the testimony of G. W. Shinn and his two boys as to the actual signing of the note, we think there is sufficient evidence to justify the lower court in finding that the signature to the note is genuine. We have decided many times that where the finding of a question of fact is based upon conflicting depositions or oral testimony, the finding of the commissioner in the first place or of a court thereon is entitled to peculiar weight and will not be disturbed unless clearly erroneous. Baughman v. Hoffman,
The point is made by appellant's counsel that there is no competent evidence of the execution of the note. If the signature be genuine, it follows that the maker executed the note.
Was there sufficient consideration? Appellants assert that the genuineness of the signature being denied by affidavit in support of the answer, the burden of proving consideration was shifted to the holder of the note under authority ofHorner v. Amick,
"Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value."
The burden of proving lack of consideration of a negotible note rests upon him who asserts it, the appellants in this case. Have they overcome the prima facie presumption of consideration? It is conceded that if the evidence of R. A. Shinn and C. O. Shinn be admissible, consideration is firmly established. But if we strike out this evidence we fail to find sufficient evidence offered by appellants to rebut the presumption of valid consideration. They rely upon the declarations made by G. W. Shinn to the executor and to Mrs. Parsons to the effect that the note was given to him or he would not have it. Mrs. Parsons told him he had this note a short time after his qualification as executor, he said that the testator had given him 22 acres of land in a former will but had changed the will and gave him the note in place of it, and that he was to have an equal share with the rest of the children and $1,000 besides. The executor said Shinn remarked that he "gave it to him." When asked if Shinn told him it was a gift he would not go to that extent but said Shinn told him his father "gave it to him." Shinn's explanation of this conversation is that he told the executor that his father had given him this note and said nothing about the consideration; he said the note was given to him or he would not have it. Mrs. Parsons *300 says he told her that "father didn't owe me a cent. He just give the note to me." This is flatly denied by Shinn, who says he had a conversation with his sister in which she said she had discussed with some one else the fact that he claimed having such note, and she had made the remark that he didn't steal it, whereupon he answered to her, "No, he give it to me." There is evidence from others, not members of the family, that G. W. Shinn had been looking after the interests of his father in the land in Roane county, a portion of which was rented, and had purchased and paid for some grass seed for use on his father's land. Does the evidence of the executor and Mrs. Parsons, in light of the testimony of G. W. Shinn as to the conversations, overcome the presumption of consideration stated on the face of the note and implied by law? On this point both the commissioner and the chancellor have decided that the burden has not been overcome. We think the declaration made to the executor by Shinn is consistent with his ownership of the note for a consideration and that it may be reasonably concluded that he meant the note was signed and handed to him, and not that it was a gift without consideration. The evidence of Mrs. Parsons is direct that it was a gift, but this conversation is denied. We do not think there is sufficient strength in this evidence of want of consideration to justify us in reversing the decision of the commissioner and the lower court in that regard.
We have not discussed the admissibility of the evidence of R. A. Shinn and R. O. Shinn as to what transpired when the note was given in the ware room. It is not necessary to a disposition of the cause; there is sufficient evidence to prove the genuineness of the signature to the note, and the commissioner and the lower court having decided in favor of its genuineness upon the conflicting evidence, that finding will not be disturbed. The same may be said as to the finding of the commissioner and the court on the issue of consideration; but we think the evidence of the executor and Mrs. Parsons fails to overcome the presumption of consideration, even should it have been submitted to us in the first instance.
The decree will be affirmed.
*301Affirmed.
