Crothers' Adm'rs v. Crothers

Decision Date01 February 1895
Citation40 W.Va. 169,20 S.E. 927
CourtWest Virginia Supreme Court

Evidence — Declarations as to Ownership — Statements against Interest—Action by Administrators—Transactions with Decedent.

1. When a transfer of property has been made, a declaration by the transferer that he is still the owner of the property, made after such transfer, is not admissible against the transferee.

2. Declarations of a deceased person, claiming ownership of specific property, are not competent evidence in favor of his administrators, or others claiming title under him, whether such declarations of ownership were made before or after the title of the adverse claimant commenced. Masters v. Varner's Ex'rs, 5 Grat. 108.

3. A person interested may give evidence against his own interest, both at common law and under section 23, c. 130, Code.

4. The purpose of section 23, c. 130. Code, was to enlarge the competency of witnesses. It does not per se render any incompetent who are competent at common law. The exception therein does not create incompetency, but leaves the cases specified in it just as they were at common law.

5. Children of a decedent, who are his distributees, are competent witnesses to prove a transfer by their father of personal estate in favor of the transferee.

6. By common law a person is a competent witness in a case if the proceeding cannot be used as evidence for him, though he may be interested in the question in issue, and may entertain wishes on the subject, and may even have occasion to contest the same question in his own case in a future suit. This rule has not been changed by section 23, c. 130, Code 1891, as to the competency of a person to testify against the representatives of a deceased person in relation to a transaction had personally by the witness with the deceased person.

(Syllabus by the Court.)

Appeal from circuit court, Ohio county.

Bill by W. B. Crothers and John McDowell, administrators, against L. M. Crothers and the Bank of the Ohio Valley. From a decree dismissing the bill, plaintiffs appeal. Affirmed.

W. W. Amett, for appellants.

Caldwell & Caldwell, for appellees.

BRANNON, P. This was a chancery suit in the circuit court of Ohio county by the administrators of Samuel J. Crothers, deceased, against L. M. Crothers, to set aside a transfer purporting to have been made by said decedent to L. M. Crothers of certificates for $10,000 stock of the Bank of the Ohio Valley, at Wheeling, and, the bill having been dismissed, the administrators appeal. The grounds on which the plaintiffs base their prayer for the annulment of such transfer of stock are undue influence, fraudulent representation, and the mental imbecility, from old age, of Samuel J. Crothers, and the charge that the written transfer is a forgery. Without giving the evidence, I may dismiss the first three grounds as unsustained by it; or, as would be more appropriate to say, there is no evidence to detail as to those grounds.

As to the allegation of forgery. The detail of evidence on this point could answer no purpose for future cases. The only persons present at the execution of the transfer of stock besides Samuel J. Crothers, the father, L. M. Crothers, a son, were Lizzie Crothers and Mrs. Dorrance, two of his daughters. The father did not sign the transfer with his own hand, but directed his son L. M. Crothers to sign his name to the formal transfer printed on the stock certificates. The two daughters are very definite in their evidence that on an occasion when L. M. Crothers was about to go to Wheeling the father suggested that he take the certificates with him to the bank in Whoeling, and have the transfer formally made on the stock book; that L. M. Crothers was disposed to postpone it, saying to his father that he was then confined to his bed, and that another time would do; but the father, being in the seventy-seventh year of his age and feeble, was urgent to have the transfer at once made, and caused his son to fill up and sign for him the written transfers. There is no showing to the contrary of the evidence of these two ladies. If they are to be believed, they clearly establish the transfer of the stock. W. B. Crothers, another son, and one of the administrators bringing this suit, says that after this alleged transfer his father stated that he had stock in the Wheeling bank, and could not account for the fact that he was getting no dividend upon it, thus negativing all idea that already the stock had been assigned to L. M. Crothers; but this evidence can avail nought—First, because W. B. Crothers is not a competent witness as to a communication with the deceased, since he is a party plaintiff, and interested to secure this fund for distribution, part of It going to himself, outside of his liability for costs (Seabright v. Seabright, 28 W. Va. 463); and he also is giving a declaration of a party made after assignment to overthrow the title of the assignee of that party (Casto v. Fry, 33 W. Va. 44, 10 S. E. 799); and also because the self-serving declaration of Samuel J. Crothers is not admissible for himself or his estate, because it Is a declaration in his own behalf (Masters v. Varner's Ex'rs, 5 Grat. 168). Mr. Dorrance states that the old gentleman stated to him that he had given L. M. Crothers this stock to make up a loss to him in the sale of a farm mentioned below. Now, this admission is admissible to sustain the transfer, because It is against the interest of the party making it, and not, like that made to William B. Crothers, going to sustain his title. I regard Dorrance'sevidence as of great force, in corroboration of the evidence of Lizzie Crothers and Mrs. Dorrance. There is, in a legal point of view, no evidence contra this positive evidence. There is a circumstance which, at first view, seems quite strong against the genuineness of the signature to the transfer; and it is this: that the two ladies present at the making of this signature say the old gentleman told his son, L. M. Crothers, to write his name so as to resemble his handwriting as nearly as he could do so, and that the signatures themselves bear the look of tremulousness of the old man's hand. Why, we may ask, did the old man wish his writing simulated? It would be natural that he should simply direct his son to write his name, and have his daughter witness it, as she did. The old man, too, could write himself, but he was feeble and in bed, and wrote with difficulty. He may have thought that, as his handwriting was known at the bank, it would be better to imitate it. This circumstance, I confess, is one which inspires suspicion; but it is only a circumstance, and not of a conclusive nature, and stands alone, without any evidence to be linked with it, and is overborne by the positive evidence above stated. If these ladies were not truthful, they would hardly have told this adverse fact There is another circumstance, hardly worth the mention, in my judgment, and this is that Samuel J. Crothers also transferred on the same date to L. M. Crothers some stock in an Ohio glass-manufacuring company, and, in a suit in Ohio by those administrators to overthrow it for like causes with those on which this suit is based, L. M. Crothers made no defease. He says he knew not the contents of the complaint in that case, and he says and proves that he was advised by counsel not to defend, because the stock was of very little value, not worth the cost of attendance in defense of the suit and might call upon him, if he were owner, to contribute as a stockholder to pay debts of the concern.

I think the circuit court was bound on the evidence to decide the case as it did, and find the transfer genuine. This being so, we have nothing to do with the justice of the matter, as between the father and L. M. Crothers and the other children; but some good reasons appear. L. M. Crothers owned a farm, and his brother W. B. Crothers importuned him to sell it, but L. M. Crothers objected to doing so, when his father, at the instance of William B. Crothers, advised him to do...

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