Boyce v. Lopez

• Decision Date: 25 June 1990
• Docket Number: No. 19415,19415
• Citation: 394 S.E.2d 768,183 W.Va. 169
• Court: West Virginia Supreme Court
• Parties: Lawrence L. BOYCE v. Ruby M. LOPEZ, Kathy Harr and Deborah K. Boyce.

Page 768

394 S.E.2d 768

183 W.Va. 169

Lawrence L. BOYCE v. Ruby M. LOPEZ, Kathy Harr and Deborah K. Boyce.

No. 19415.

Supreme Court of Appeals of West Virginia.

June 25, 1990.

Syllabus by the Court

"Upon a motion for a directed verdict, all reasonable doubts and inferences should be resolved in favor of the party against whom the verdict is asked to be directed." Syl. pt. 5, Wager v. Sine, 157 W.Va. 391, 201 S.E.2d 260 (1973).

LaVerne Sweeney, Grafton, for Lawrence L. Boyce, Jr.

Howard Ferris, Grafton, for Ruby M. Lopez.

John L. Bord, Grafton, for Deborah K. Boyce.

PER CURIAM:

The principal issue in this appeal is whether the trial court erred in directing a verdict in favor of the appellant, Lawrence L. Boyce, Jr., in the amount of $8,800, and in directing a verdict on behalf of the appellees, Ruby M. Lopez, Kathy Harr and Deborah K. Boyce (now Riggs), on all other issues. Upon review of the record before us, we conclude that the evidence showed a proper case for jury determination, and accordingly, we reverse the judgment of the trial court. ¹

Lawrence L. Boyce, Sr., died testate on October 24, 1985. In his Last Will and Testament, Mr. Boyce divided his estate equally between his son, the appellant, and his companion, Ruby Lopez. The appellant and Ms. Lopez entered into an agreement on November 15, 1985, with respect to the division of a portion of the estate. ² The parties, however, disputed the ownership and existence of certain items of personal property allegedly belonging to the decedent.

The appellant filed a complaint seeking a judgment against the appellees for one-half of the fair market value of certain personal property from the estate. A trial was conducted in the presence of a jury, however, the trial judge directed a verdict at the conclusion of the evidence which is the subject of this appeal.

It is difficult to summarize the evidence in this case because of the numerous items of property in question. It appears, however, that the primary controversy relates to cash obtained from the sale of cattle and hamburger, a mixed batch of silver coins, a diamond ring and a gold watch, and other money belonging to Mr. Boyce at the time of his death. Generally, from the record we found the following evidence.

Shortly before Mr. Boyce's death, Ms. Lopez testified that he had sold cattle to Ms. Harr and her father-in-law. In a somewhat confusing scenario, it appears that a total amount of $2626.00 was paid for the cattle and that two checks were given to Ms. Lopez for that sale. Mr. Harr paid Ms. Lopez $1,751.00 for the cattle sale and the remaining $875.00 was paid by Ms. Harr. Ms. Lopez deposited the $1,751.00 in a joint account she held with Mr. Boyce but returned an $875.00 check to Ms. Harr.

Ms. Lopez also testified that in another transaction, unrelated to the sale of cattle to the Harrs, Mr. Boyce had arranged for some of his other cattle to be butchered for hamburger and to be sold, the proceeds of which had not been collected at the time of his death. Ms. Lopez further testified that she collected $400.00 from the hamburger sales and deposited that money in the joint account she held with Mr. Boyce.

There were also several witnesses who testified concerning a "canner" of mixed silver coins. Howard Ferris, Melvin Casada, Richard Boyce, the appellant and the appellees, testified that they had seen the "canner" of silver coins. Yet, none of the witnesses knew the actual amount of coins in the container at the time of Mr. Boyce's death, and each witness merely estimated the weight of the "canner." Furthermore, Ms. Lopez testified that the "canner" of silver money was taken from her home after Mr. Boyce's death without her permission by Ms. Harr and Ms. Riggs. However, Ms. Harr and Ms. Riggs testified that they removed the coins at the request of Ms. Lopez. When the "canner" was returned to Ms. Lopez by Ms. Harr and Ms. Riggs, Ms. Lopez testified that there was $1240.00 of coins in the "canner."

The appellant, Ms. Lopez, and Richard Boyce also testified that Mr. Boyce owned some "rolled" silver dimes and "war dimes" at the time of his death. Ms. Lopez stated that she did not know the actual amount of silver dimes and war dimes that Mr. Boyce had collected but the appellant testified that there were $550.00 of rolled dimes, $220.00 of which were "war dimes." Richard Boyce testified that he believed there were "four or five hundred dollars worth" of silver dimes belonging to Mr. Boyce.

Testimony was also given concerning a diamond ring and a watch owned by Mr. Boyce. The evidence revealed that these items were taken from Mr. Boyce's body by the funeral director and given to Deborah Boyce Riggs. At trial, Ms. Riggs maintained that she placed those items back into the casket before it was closed. ³

There was also evidence that at the time of Mr. Boyce's death, he was in possession of: (1) "five gallons of pennies"; (2) one fruit cake can of mixed silver coins; (3) a $500 bill; (4) a cigar box containing some railroad watches, a centennial fifty-cent piece and a Grant fifty-cent piece; (5) bonds and five one-hundred dollar bills contained in a safety deposit box; (6) approximately $2,000.00 in Mr. Boyce's billfold; (7) red sealed currency; (8) money in a "false bottom drawer" in the farmhouse; (9) $29,000.00 concealed in a living room chair; and (10) money in the safe in the upstairs of the...