Gapen v. Gapen
| Citation | 23 S.E. 579,41 W.Va. 422 |
| Parties | GAPEN v. GAPEN. |
| Decision Date | 04 December 1895 |
| Court | Supreme Court of West Virginia |
Syllabus by the Court.
1. Where one who is drafted pays money to a minor for taking his place as a soldier in the United States army, and the minor enters such military service by the consent of his father such money belongs to the minor, and not to the father.
2. The specific performance of an executory contract will not be decreed against the heirs of the party, who, when he made it was of unsound mind.
3. No statute of limitations runs against an express trust, nor does lapse of time avail, until the duties are ended, or the trust disarmed.
4. Where the evidence taken tends to show that defendant is entitled to certain credits on plaintiff's claim, and the cause is referred to a commissioner to take and state an account, he should be required to pass upon such items of credit.
5. A case in which these principles are discussed and applied.
Appeal from circuit court, Monongalia county.
Action by Joseph Gapen against Stephen Gapen. Judgment for plaintiff. Defendant appeals. Reversed.
R. E Fast and L. V. Keck, for appellant
HOLT P.
On appeal from decrees entered by the circuit court of Monongalia county, the one on the 22d day of June, the other on the 12th day of November, 1894, decreeing a sale of a tract of land.
Amos Gapen, of Monongalia county, the father, died intestate on the 5th day of February, 1892, leaving as his heirs at law his two sons, the defendant, Stephen Gapen, and the plaintiff, Joseph Gapen. Some time in the year 1864, Joseph Gapen, being then 19 years old, enlisted as a soldier in the federal army as a substitute for one who had been drafted in the state of Pennsylvania, and served until the end of the war, receiving and using his pay as a soldier during his term of enlistment. For entering the army as such substitute he received the sum of $900, of which sum $885 came into the hands of his father to take care of for him during his absence in the army. On the 4th day of March, 1867, the father, Amos Gapen, bought of William S. Miller the undivided half of a tract of land of 57 3/4 acres on the east side of the Monongahela river in Monongalia county at the price of $700, and Miller and wife, by deed dated the 13th day of March, 1867, conveyed the land to Amos Gapen. Five hundred dollars of the purchase money was paid in hand. A note for $200, the residue, was executed, and a lien was retained on the land to secure its payment. It was paid about the 4th day of March, 1868. By deed dated the 15th day of November, 1870, P. L. Kramer and wife sold and conveyed to plaintiff, Joseph Gapen, the other undivided half of this 57-acre tract of land. On the 27th day of December, 1879, Amos Gapen executed and delivered to his son Joseph the following instrument, which was proved by the two subscribing witnesses, and admitted to record:
After the death of his father, Joseph Gapen, in September, 1892, brought his suit in equity against his brother, Stephen Gapen, alleging that since the death of their father his brother, Stephen, claims an undivided half by descent of the half conveyed to their father, Amos Gapen, by Miller and wife; that he is living upon the land, and asserting title thereto. Plaintiff alleged that his father, by virtue of having paid for the land with his money, and by virtue of the instrument given him, held the legal title to the undivided half for the use and benefit of plaintiff, and prayed that his brother, Stephen, might be compelled by proper deed of release to convey the same to him, or that a decree be given him for the money, to be enforced by a sale of the land, and for general relief. Defendant, Stephen Gapen, answered, wherein he denied that the $900 was plaintiff's money, received and held in trust for him by their father, but that it was paid to him as the consideration of giving his consent that his minor son should go as a substitute; that he bought of Miller the land in question, paid for it with his own money, and had the same conveyed to himself some two years after plaintiff's return home from the army; that, if there was any understanding that the $885 was to be paid to plaintiff, it has been paid; and that the recovery thereof is barred by the statute of limitations. And he further says that when the instrument of 27th December, 1879, was executed by his father, Amos Gapen, he was non compos mentis, could not transact any business, and that such writing was invalid. On this point the testimony of many witnesses was taken. Eight witnesses testify that Amos Gapen was of sound mind, fifteen testify that he was of unsound mind, and the learned judge who decided the case in the circuit court seems to have been brought to the conclusion that on the 27th day of December, 1879, Amos Gapen was mentally incapable and incompetent to execute the paper writing in question. After going over the testimony, and giving due weight to his opinion on that question of fact, I see no ground for differing with him on such finding.
2. The next question discussed is, who was entitled, under the circumstances of this case, to what is called the "substitute money," the father or the minor son? This money was paid to the minor by Williams for taking his place as a soldier in the United States army, and assuming the risk of life and limb and loss of health and hardships and privations incident to his service as a soldier. The father consented to his minor son's entering into the military service of the United States government. These risks were all the son's, not the father's; and we think the money he thus received, as well as his regular pay as a soldier, should be regarded as belonging to the son, and not to the father; and this view seems to have the sanction of the courts as far as I have been able to examine the cases. See Baker v. Baker (1868) 41 Vt. 55; Banks v Conant (1867) 14 Allen, 497; Mears v. Bickford (1867) 55 Me. 528; Magee v. Magee, 65 Ill. 255; Cadwell v. Sherman, 45 Ill. 348; Schouler, Dom. Rel. (5th Ed.) § 252a. A different view is taken in Bundy v. Dodson, 28 Ind. 295, and in Ginn v. Ginn (1872) 38 Ind. 526. But in the case of Halliday v. Miller (1887) 29 W.Va. 424, 1 S.E. 821, the cases are reviewed and discussed, and the conclusion reached that the bounty as well as the pay as a...
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