Cooper v. Cooper et al.

• Citation: 65 W.Va. 712
• Court: West Virginia Supreme Court
• Decision Date: 11 May 1909
• Parties: Cooper v. Cooper et al.

65 W.Va. 712

Cooper

v.Cooper et al.

Supreme Court of Appeals of West Virginia.

Submitted September 4, 1908.

Decided May 11, 1909.

1. Specific Performance Contract of Support Liability of Decedent's Estate.

Equity will entertain a suit against the estate of a decedent by one whom deceased had bound himself by contract to main tain and support, and upon proper proof will grant relief by decreeing against his estate the reasonable cost of such support, (p. 716.)

2. Same Contract Enforcement Against Decedent's Estate.

In order to establish such contract against the estate of a decedent, if it be by parol, the proof must be so clear, cogent and convincing as to leave no doubt in the mind of the chancellor, that the particular contract as averred was made, and its terms and conditions must be clearly shown, (p. 718.)

3. Same Pleading and Proof.

The proof must conform to the-averments of the bill. Plaintiff cannot allege an agreement made with a certain person and obtain relief by proving another agreement made with a different person, (p. 718.)

4. Witnesses Competency Transactions With Decedent.

The prochein ami, being liable for costs in the event the suit should terminate adversely to plaintiff, is not a competent witness, under section 3945, Code 1906, to prove a parol agreement made between himself and a deceased person, against the heirs at law of such deceased person, (p. 717.)

Appeal from Circuit Court, Randolph. County. Bill by Bertha Cooper, by her next friend, against John A. ooper and others. Decree for plaintiff, and defendants appeal.

Reversed and Petition Dismissed.

Harding & Harding and W. W. Braxnon, for appellants. W. B. Maxwell, for appellee.

Williams, Judge:

Bertha Cooper, an infant who sues by next friend, her mother, Gettie Purkey, files her bill against the administrator and heirs of John A. Cooper, deceased, to specifically enforce a contract, alleged to have been made for her benefit between said Cooper and her mother, against said estate, for her support until she arrives at "full age." The facts are these: John A. Cooper died intestate and unmarried about the last of December, 1903, leaving brothers, sisters, nieces and nephews as his heirs at law and distributees. His personal property being insufficient for the pav-ment of his debts, his administrator brought a suit in the circuit court of Randolph county for the sale of his land to pay them. After the payment of debts, there remained in the hands of the special commissioner a fund, derived from the sale of the land, amounting to $1,408.96.

Cooper was the father of a bastard child, who is the petitioner and appellee, Bertha Cooper, begotten of Gettie L. "Vance. On the 8th day of May, 1897, in a bastardy proceeding in the circuit court of Randolph county by the county court of Randolph county, he was adjudged to pay to the county court, for the maintenance of the child, the sum of $60 and the costs of the suit, and the sum of $60 per annum for six successive years, payable on the 10th of May of each year, unless the child should sooner die, the first of the six payments falling due on the 10th day of May, 1898. He was required to give bond in the penalty of $800 with security for the faithful performance of the court's judgment, and did so on May 13, 1897.

On the 22nd of November, 1897, he appeared before the county court, by counsel and moved to be released from the original bond, and to be allowed to substitute another bond in the penalty of $400 for the performance of other conditions; and this was allowed to be done. This order permitting it contains the following recital: "And it appearing to this Court that said John A. Cooper has taken charge of said child, with the consent of said Gettie L. Vance to keep and maintain it, at his own expense, and has this day tendered a bond in the penalty of Four Hundred Dollars executed by himself with Christian Cooper, Asa Cooper and George W. Cooper as sureties, conditioned that he will maintain said child. It is ordered that said bond be accepted in lieu of the bond executed by him before the circuit court, and that he and his sureties in said original bond be released from all liability under the same."

Cooper then took the child and placed it in the home of his brother who kept it, and took care of it, until April next after the death of said Cooper. The child's mother, whose maiden name was Vance, having in the meantime married one George F. Turkey then took it to her own home.

Pending the suit by the administrator for the settlement of Cooper's estate, plaintiff filed her petition therein, against the heirs of John A. Cooper, deceased, claiming the balance of the estate after payment of debts, on the ground that the alleged agreement made her his adopted daughter; and if it did not amount to adoption, it at least entitled her to support and main tenance out of said fund until she should arrive at the age of twenty-one years. The petition does not aver whether, or not, the agreement was in writing and signed by Cooper. But contains the following averment in relation thereto, viz: "That after the said judgment had been rendered against said John A. Cooper as aforesaid and when petitioner was about sixteen months old, the said John A. Cooper entered into a contract and agreement with petitioner's said mother whereby petitioner was given into his custody and control with the express agreement and understanding that he was to take petitioner, provide her with a home and with a support suitable to her age and condition until she arrived of full age and able to take care of herself and not only did he agree to do this but he also gave her his name and agreed and promised to adopt her as his child and did take her under his control, did, as long as he lived, provide her with a home and support suitable to her age and condition, did give her his name but failed to formally adopt petitioner as his child in the way and manner provided by the statute regulating the adoption of children."

Defendants demurred to and answered the petition. In the answer they admit that Cooper had taken care of, and provided for petitioner at the home of a relative of his for about six years; but they deny the alleged agreement that he was to take care of her for any longer time than the six years during which he was obligated by the judgment of the circuit court to pay $60 a year to the county court for her maintenance. They also deny that he gave her his name or that he ever promised to adopt her as his child.

The demurrer does not appear to have been directly passed upon. On the 10th of September, 1906, the two causes were heard together, the petitioner's cause being heard upon the bill, answer and replication and the depositions of witnesses taken on behalf of both parties; and the court decreed petitioner her reasonable support out of said Cooper's estate, and directed the special commissioner to pay the funds in his hands belonging to the estate over to the general receiver of the court; and the general receiver was directed to lend it, subject to the future order of the court. The cause was referred to a commissioner to ascertain what would be a reasonable sum to be 'paid annually for the support of the child; and he ascertained and reported that 875 a year would be a reasonable amount; and on the 23rd of January, 1907, a final decree was made confirming the report, and directing the general receiver to pay to G. F. Purkey, guardian for petitioner, the sum of $75 a year until she should arrive at the age of twenty-one years. The decree further found that four annual payments were then due, making $300, which sum the receiver was directed to pay to the guardian at that time. From these two decrees the heirs of John A. Cooper obtained an appeal and supersedeas.

The decree passing upon the merits, in effect, overrules the demurrer. Bantz v. Born ell. 12 W. Va. 772; Craig v. Craig, 54 W. Va. 183. It is insisted that it should have been sustained. We do not think so; the bill avers sufficient matter to entitle plaintiff to some relief, even if not the full relief prayed for; and, under the prayer for general relief, she might obtain some other relief. The averments of the bill, if sufficiently established by evidence, would entitle plaintiff to a decree for her yearly support until she arrives at the age of twenty-one years, provided she live so long. Equity has jurisdiction, and the bill is good on demurrer. Ralplisnycler v. Ralphsnyder, 17 W. Va. 28; Rex v. Creel, 22 W. Va. 373.

The bill alleges that after said Cooper promised to support the child he was released from paying the $60 a year to the county court. This is sufficient consideration to support the promise. Billingsley v. Clelland, 41 W. Va. 234; Jangraw v. Perkins, 77...