Cann v. Cann

CourtSupreme Court of West Virginia
Writing for the CourtDENT
Citation20 S.E. 910,40 W.Va. 138
PartiesCANN . v. CANN et al.
Decision Date19 December 1894

20 S.E. 910
40 W.Va.
138

CANN .
v.
CANN et al.

Supreme Court of Appeals of West Virginia.

Dec. 19, 1894.


Administrator — Proof of Personal Claim — Action on Duebill —Limitations— Services of Son.

1. An administrator who presents a personal demand against his decedent's estate must show that such demand is just and valid, and not barred by the statute of limitations. The statute of limitations does not begin to run until the right of action accrues.

2. An action or suit, cannot be maintained on an undelivered writing or duebill found among the supposed debtor's papers after his death.

3. Such writing, so found, is not a sufficient acknowledgment to prevent the bar of the statute of limitations, but may, if genuine, be admissible as evidence to establish a quantum meruit.

4. Where a son, who is also the administrator of his father's estate, sues such estate for wastes claimed for services rendered before his father's death, he cannot recover unless he proves an express contract, or the facts and circumstances sustained by a preponderance of testimony clearly establish an expectation or intention on the part of his father to compensate him for such services.

(Syllabus by the Court.)

Appeal from circuit court, Berkeley county. Bill by Harrison Cann against Susan Cann and others. From a decree sustaining an exception by defendants to a report by a commissioner in favor of plaintiff, and giving plaintiff leave to amend, plaintiff appeals. Reversed.

Faulkner & Walker, W. H. Travers, and C. H. Syme, for appellant.

D. B. Lucas, for appellees.

DENT, J. At March rules, 1883, in the clerk's office of Morgan county, Harrison Cann filed his bill in chancery against the heirs of his father's estate to enforce payment of his claim for services rendered as evidenced by a certain duebill bearing date the 28th day of April, 1880, calling for $3,000 for services rendered by the plaintiff "since he became twenty-one years of age." The plaintiff made himself a party defendant to this bill as administrator of decedent. The only appearance for the defendants is the answer of the infants Silas Largent and Elizabeth Largent, by their guardian ad litem, T. N. B. Davis; an answer filed by George W. Ziler, husband of one of the heirs, and an exception indorsed on the commissioners' report by the defendants Catherine Ziler, Susan E. Ambrose, and Sarah Cann. The bill is not taken for con fessed as to any of the defendants, but on service of summons an order of reference is entered to ascertain the debts and their priorities against the estate of Jacob Cann, deceased, and the estate liable to the payment of the same. From the commissioner's report it appears that the personal estate was amply sufficient to pay all the debts against the decedent, with the exception of plaintiff's claim, and that that is the only matter of controversy in the suit, without which no suit would have been necessary.

According to the law and the decision of this court in the case of Rader v. Neal, 13 W. Va. 373, in this suit concerning his wife's separate estate, George W. Ziler was not a necessary party thereto, and therefore the answer filed by him cannot be regarded, as he is too remotely interested in the subject-matter to contest plaintiff's claim in his own right.

The adult defendants who are proper parties to the suit did not think it worth while to contest the allegations of the bill, but contented themselves with indorsing the following exceptions on the commissioner's report: "The within report is excepted to by Catherine Ziler, Susan E. Ambrose, and Sarah Cann so far as it allows Harrison Cann a claim against the estate, amounting, principal and interest, to $4,924.50, all of which should be rejected as improperly allowed." The report being in accord with the allegations of the bill, to which these defendants made no appearance, but allowed it to go uncontroverted so far as they were concerned, this exception should have been disregarded by the court, or promptly overruled, as by their silence in not pleading they have admitted the justice of the claim. As to them, neither the report of the commissioner nor any proofs are necessary to support a decree justified by their confession. It is not so with the infant defendants, who are under the protection of the court, and whose interests must be regarded and preserved by it. The plaintiff has placed himself in an anomalous, though not inequitable position by making himself, not only as the administrator of Jacob Cann, deceased, but also as the administrator of Elizabeth Largent, deceased, defendant to his own bill. If the claim on which he sues is just beyond controversy, there could be nothing wrong in so doing, as equity readily recognizes and distinguishes between personal and representative rights, and can shape its decrees accordingly. But where the obligation of defense rests upon him in his representative capacity, equity will not permit him to make himself, in such capacity, a defendant to his own personal bill, and then treat such bill as taken for confessed as to his decedent's estate, but will require him to establish the debt claimed by him against such estate as fully and completely as though all defense that could possibly be made to such debt were properly interposed to its allowance. If this were not true, and he, by his means, secured the allowance of

[20 S.E. 911]

an illegal debt against the estate of his decedent, he would become personally liable for its payment, and so he has gained nothing by his suit. In section 5, c. 87, of the Code it is provided that, "if any personal representative, guardian, curator or committee shall pay any debt, the recovery of which could be prevented by reason of illegality of consideration or lapse of time, or by any other fact within his knowledge, no credit shall be given him therefor." This law applies equally as well where an individual claim of the fiduciaries is presented for allowance as where a debt has been paid by him, and the duty devolves upon the court and commissioner before whom his accounts are presented to prevent the auditing against the estate of any illegal claim; wherefore it becomes incumbent on the court in this case to say whether the claim presented by the plaintiff in his personal character has been shown to be a proper charge against the estate of the decedent. The bill charges that the decedent, in pursuance of a contract made with the plaintiff to pay him a reasonable compensation for his services as a common laborer on his father's lands (decedent) since he became 21 years of age, executed to the plaintiff his note or duebill on the 28th day of April, 1880, for $3,000. The evidence of plaintiff shows that some time after his father's death he found this duebill written in his father's account book. It is also shown that it was in the father's handwriting. If this duebill had been delivered by the deceased to plaintiff, his right to recover would have been beyond question. It not only was not delivered, but plaintiff had no notice of its existence until it came to his hands as the administrator of decedent's estate. Not being delivered, it had no binding force. Curtis v. Gorman, 19 Hi. 141; Thomas v. Watkins, 16 Wis. 549; Prather v. Zulauf, 38 Ind. 155. To allow It to be used as an admission or acknowledgment of an indebtedness would, in effect, make it a valid legal instrument, and hence the law requiring delivery would be thwarted. Nor can it be treated as such an acknowledgment In writing as will avoid the statute of limitations. In 13 Am. & Eng. Enc. Law, p. 760, the law is stated as follows, to wit: "To make the acknowledgment complete, It must, however, be communicated to some one; and consequently a paper which was never delivered, but was found among the debtor's papers after his death, cannot operate as an acknowledgment." Also: "A mere writing acknowledging a debt, which is retained by the person making it, and which is never delivered, either to the creditor or any one else, cannot have the effect of preventing the operation of the statute." Pershing v. Canfield, 70 Mo. 140; Merriam v. Leonard, 6 Cush. 151. For the purposes of this suit under the law as we find It the duebill relied on is worthless unless it can be treated as an admission of indebtedness on the part of the decedent. In Chamberlayne's Best, Ev. 486, it Is said that a written admission, void as an ob ligation, is admissible as evidence, although the maker is deceased, and such admission be in the form of a book entry. This appears to be consonant with reason and justice if the admission as alleged is shown to be genuine and indisputable; but where its genuineness is attacked, and it is not sustained by a clear preponderance of legal testimony, its weight as evidence is destroyed, and it should be received with the greatest caution, if at all. The commissioner to whom the matter was referred finds in favor of the genuineness of the paper, but the court, on an examination of the evidence, overrules and disaffirms the report. Hence it devolves upon this court to determine for itself from the facts and circumstances disclosed by the record whether it will sustain the conclusion of the commissioner or that of the circuit court. Roots v. Kilbreth, 32 W. Va. 585. 9 S. E. 927.

Examining the evidence, we find that the following nine witnesses introduced by the plaintiff, to wit, Lewis Allen, George Blakely, J. H. Buzzard, William P. Smith, H. Clay Spohr, Edmund Pendleton, Franklin Farris, Albeto Mendenhall and J. S. Duckwall (an attorney for plaintiff), testify more or less strongly that they are acquainted with the handwriting of Jacob Cann, deceased, and that they believe the signature to the controverted paper to be his. Another witness for the plaintiff, —John W. Bechtol—who was well acquainted with decedent's signature when written with a pen, testifies that he is unable to say that the signature in controversy written with a pencil is his genuine...

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24 practice notes
  • Morgan v. Grace Hospital, Inc., No. 12386
    • United States
    • Supreme Court of West Virginia
    • 29 Junio 1965
    ...103 S.E.2d 792; G. T. Fogle and Company v. King, 132 W.Va. 224, 51 S.E.2d 776; Barnes v. Lilly, 110 W.Va. 643, 159 S.E. 873; Cann v. Cann, 40 W.Va. 138, 20 S.E. 910; Harper v. Harper, (4th Cir.), 252 Fed. 39; City National Bank of Fairmont v. Fidelity Mutual Life Insurance Company, (N.D., W......
  • State v. Dickerson, 1,892.
    • United States
    • Nevada Supreme Court of Nevada
    • 31 Diciembre 1910
    ...P. 868; Borland v. Haven (C. C.) 37 F. 394; Pierce v S. P. R. R. Co., 120 Cal. 156, 47 P. 874, 52 P. 302, 40 L. R. A. 350; Cann v. Cann, 40 W.Va. 138, 20 S.E. 910; Vail v. Halton, 14 Ind. 344; Lewis v. Mason, 84 Va. 731, 10 S.E. 529; Green v. Dodge, 79 Vt. 73, 64 A. 499; Hunter v. Hunter, 6......
  • Murphy's Estate, In re, No. 10686
    • United States
    • Supreme Court of West Virginia
    • 26 Marzo 1955
    ...352, 9 S.E.2d 528; Hotsinpiller v. Hotsinpiller, 72 W.Va. 823, 79 S.E. 936; Cann v. Cann's Heirs, 45 W.Va. 563, 31 S.E. 923; Cann v. Cann, 40 W.Va. 138, 20 S.E. Other questions raised by claimant, or on cross-assignments of error, relate particularly to the recovery permitted by the trial c......
  • Keys v. Keys, (No. 4682.)
    • United States
    • Supreme Court of West Virginia
    • 30 Enero 1923
    ...v. Stansbury's Adm'rs. 20 W. Va. 23, 31; Hurst's Adm'r v. Hite, 20 W. Va. 183; Riley v. Riley, 38 W. Va. 283, 18 S. E. 569; Cann v. Cann, 40 W. Va. 138, 20 S. E. 910; Thompson v. Halstead, 44 W. Va. 390, 29 S. E. 991; Swiger v. Evans, 75 W. Va. 236, 83 S. E. 917; Updike v. Titus, 13 N. J. E......
  • Request a trial to view additional results
24 cases
  • Morgan v. Grace Hospital, Inc., No. 12386
    • United States
    • Supreme Court of West Virginia
    • 29 Junio 1965
    ...103 S.E.2d 792; G. T. Fogle and Company v. King, 132 W.Va. 224, 51 S.E.2d 776; Barnes v. Lilly, 110 W.Va. 643, 159 S.E. 873; Cann v. Cann, 40 W.Va. 138, 20 S.E. 910; Harper v. Harper, (4th Cir.), 252 Fed. 39; City National Bank of Fairmont v. Fidelity Mutual Life Insurance Company, (N.D., W......
  • State v. Dickerson, 1,892.
    • United States
    • Nevada Supreme Court of Nevada
    • 31 Diciembre 1910
    ...P. 868; Borland v. Haven (C. C.) 37 F. 394; Pierce v S. P. R. R. Co., 120 Cal. 156, 47 P. 874, 52 P. 302, 40 L. R. A. 350; Cann v. Cann, 40 W.Va. 138, 20 S.E. 910; Vail v. Halton, 14 Ind. 344; Lewis v. Mason, 84 Va. 731, 10 S.E. 529; Green v. Dodge, 79 Vt. 73, 64 A. 499; Hunter v. Hunter, 6......
  • Murphy's Estate, In re, No. 10686
    • United States
    • Supreme Court of West Virginia
    • 26 Marzo 1955
    ...352, 9 S.E.2d 528; Hotsinpiller v. Hotsinpiller, 72 W.Va. 823, 79 S.E. 936; Cann v. Cann's Heirs, 45 W.Va. 563, 31 S.E. 923; Cann v. Cann, 40 W.Va. 138, 20 S.E. Other questions raised by claimant, or on cross-assignments of error, relate particularly to the recovery permitted by the trial c......
  • Keys v. Keys, (No. 4682.)
    • United States
    • Supreme Court of West Virginia
    • 30 Enero 1923
    ...v. Stansbury's Adm'rs. 20 W. Va. 23, 31; Hurst's Adm'r v. Hite, 20 W. Va. 183; Riley v. Riley, 38 W. Va. 283, 18 S. E. 569; Cann v. Cann, 40 W. Va. 138, 20 S. E. 910; Thompson v. Halstead, 44 W. Va. 390, 29 S. E. 991; Swiger v. Evans, 75 W. Va. 236, 83 S. E. 917; Updike v. Titus, 13 N. J. E......
  • Request a trial to view additional results

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