Gapp v. Gapp

• Decision Date: 13 June 1944
• Docket Number: 9558.
• Citation: 30 S.E.2d 530,126 W.Va. 874
• Parties: GAPP et al. v. GAPP et al.
• Court: West Virginia Supreme Court

30 S.E.2d 530

126 W.Va. 874

GAPP et al. v. GAPP et al.

No. 9558.

Supreme Court of Appeals of West Virginia.

June 13, 1944

E L. Judy, of Petersburg, and H. G. Muntzing, of Moorefield for plaintiffs in error.

Ralph J. Bean, of Moorefield, for defendants in error.

LOVINS Judge.

M. F Gapp and Dora E. Gapp, his wife, prosecute this writ of error to a judgment of the Circuit Court of Hardy County which denied a recovery against the committee and from the estate of Frank Gapp, an insane person, on an unliquidated and disputed claim for personal services.

Frank Gapp conveyed to M. F. Gapp and Dora E. Gapp, his wife, all of his real estate and part of his personal property by deed bearing date August 18, 1939, setting forth a monetary consideration of $9,600, payable in twelve equal annual installments. The deed contains the following language: "*** and in further consideration that said first party is to have a home on the real estate hereinafter conveyed and to have the same care and treatment from said second parties he now receives from them, but said second parties are not to be responsible for doctor bills and clothes, ***."

Frank Gapp, an uncle of M. F. Gapp sixty-five years of age, for several years prior to August 18, 1939, resided with M. F. Gapp and his wife, under an arrangement whereby they lived on Frank Gapp's farm and maintained a home for him, he paying one-half of the grocery bills and $1 a month for washing his clothes. During this period Frank Gapp suffered from rheumatism and other diseases affecting his genito-urinary organs, but which did not confine him to bed or render him incapable of taking his meals at the table and attending to his other personal needs.

On August 18, 1939, Frank Gapp required the services of a physician, who testified that his then physical condition was not good, but that "mentally he was in good shape". On the day following the execution of the deed he became so seriously afflicted that he was confined to bed and remained bedridden for about six months during which time he had no control over his processes of elimination, which necessitated frequent changes of bedclothing. At times he became violent, restraint was necessary, and his condition was such that throughout day and night some person was required to attend him or be within hearing distance to minister to his needs. At the end of six months, he gradually improved, staying out of bed for a few hours daily, thus eliminating in some degree the care and attention theretofore required. The nursing care and treatment required were performed by M. F. Gapp and his wife, aided by persons employed and paid by M. F. Gapp.

Frank Gapp's lack of mental capacity having become evident, M. F. Gapp and Anton Keller were appointed and qualified as committee for him as an insane person. The appointment was made in August, 1940, but the date of the adjudication of insanity at some time prior thereto is not disclosed by the record. On May 16, 1941, the County Court of Hardy County, upon request and by agreement of counsel, appointed a special commissioner of accounts "for the purpose of Auditing and settling the accounts due said Committee". Shortly thereafter M. F. Gapp and his wife presented to the special commissioner of accounts their joint claim in the sum of $743 for care, treatment and maintenance of Frank Gapp beyond that which he received prior to the execution of the aforesaid deed.

From an analysis of the claim it appears that Gapp and his wife assert that the committee was indebted to them for 184 days at the rate of $1.50 a day and 467 days at the rate of $1 a day. The period for which services are claimed ended May 31, 1941. The claim is predicated upon the theory that the care and treatment necessarily rendered Frank Gapp by claimants after the execution of the deed exceeded the services contemplated by the provisions of the deed. The special commissioner of accounts reported that claimants were entitled to recovery for 651 days at the rate of $1 a day, being the total number of days for which claimants demanded compensation. Upon consideration of the report and exceptions thereto the county court reduced claimants' recovery from $1 a day to 80¢ a day, and entered judgment that claimants recover $520.80. A writ of error to the judgment of the County Court of Hardy County was awarded by the circuit court of that county, and upon a hearing in the latter court, an order was entered denying any recovery on the theory that the services rendered by claimants during the illness of Frank Gapp were contemplated by the deed.

The county court's lack of jurisdiction of the subject matter is not formally raised by cross-assignment of error, but that question was before the circuit court when this proceeding was there on writ of error. The circuit court held that the county court had jurisdiction of the subject matter, but denied recovery on the ground hereinabove indicated. The absence of a formal assignment of error challenging jurisdiction of the subject matter does not preclude this Court from taking cognizance of the lack of such jurisdiction when, as here, the question fairly arises on the record. It then becomes our duty to consider and correct an adjudication erroneously made. Buskirk v. Ragland, 65 W.Va. 749, 752, 65 S.E. 101; Cresap v. Kemble, 26 W.Va. 603, 606. The appointment of a special commissioner of accounts on the request and by the consent of the litigants, and subsequent litigation before that official respecting this claim do not confer jurisdiction of the subject matter by consent of the parties. Nelson v. Nash, W.Va., 29 S.E.2d 253.

The jurisdiction of county courts of "all matters of probate, the appointment and qualification of *** committees *** and the settlement of their accounts ***" is conferred by Article...