Hedrick v. Harper

• Decision Date: 21 November 1950
• Docket Number: No. 10231,10231
• Citation: 135 W.Va. 47,62 S.E.2d 265
• Parties: HEDRICK, v. HARPER et al.
• Court: West Virginia Supreme Court

Page 265

62 S.E.2d 265

135 W.Va. 47

HEDRICK, v. HARPER et al.

No. 10231.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 4, 1950.

Decided Nov. 21, 1950.

Syllabus by the Court.

1. A chancery cause should not be remanded for further development of an issue of fact, unless the record discloses a strong probability that there is available evidence to develop the same.

2. A substantial sum of money admittedly given by a father to his daughter, unexplained, creates a rebuttable presumption that such gift was intended as an advancement.

3. Transactions between father and son do not of themselves create a presumption that such transactions constitute advancements to the son. The necessary factual elements of an advancement must be established by proof.

4. Indefinite oral statements made during his life by a deceased person of an intention to dispose of his estate in a particular manner and to a particular person in the absence of a consideration are not sufficient to establish the right of such person to the estate and the disposition indicated by such statements.

5. Services rendered by a daughter to a father are presumed to be grantuitous and "in order to recover therefor the claimant must go beyond showing the rendition of the service, its value, and the fact that no remuneration has been received. In order to overcome the presumption that pay was not intended, it must be shown that at the start the recipient expected to pay and the performer expected remuneration. This may be shown by either an express understanding or by clear proof of circumstances from which it is necessarily implied." In re Fox's Estate, 131 W.Va. 429, 48 S.E.2d 1, 7 A.L.R.2d 1.

William T. George, Jr., Philippi, for appellant.

Stanley E. Dadisman, Charleston William McCoy, Franklin, Charles C. Wise, Jr., Charleston, for appellees.

LOVINS, President.

This suit was instituted in the Circuit Court of Pendleton County by Sallie Harper Hedrick, administratrix of the estate of Isaac H. Harper, a resident of Pendleton County, who died August 11, 1945, against his only heirs at law, Sallie Harper Hedrick, a daughter, hereinafter designated as 'appellant' or 'daughter', and Isaac Glenn Harper, an infant grandson, and Florence Simmons Harper, the mother and guardian of Isaac Glenn Harper and the widow of Kenny C. Harper, an only son, who had predeceased his father, hereinafter designated as 'appellees.'

Plaintiff prayed that appellant and appellees be required to disclose all advancements received by them, or those through whom they claim, from the decedent during his lifetime; that the case be referred to a commissioner in chancery to ascertain the amount of such advancements; that the property owned by decedent at the time of his death be determined; that the accounts of the administratrix be finally settled; and that a proper distribution of the assets be decreed.

The administratrix contends that certain items included in the appraisement of the estate under the hearing of 'gifts or conveyances made prior to death' were advancements made by decedent to his children during his lifetime, and, therefore, it is necessary to bring them into hotchpot before a lawful distribution of the assets can be made. These items were: (1) Gifts of $1,057.58 made by decedent to Sallie Harper Hedrick on or about November 27, 1942, and $6,000.00 to her on or about August 1, 1945; (2) conveyances to Kenny C. Harper of an undivided one-half interest in 335.94 acres, situated in Highland County, Virginia, by deed dated March 29, 1937, and an undivided one-third interest in a tract of 50 acres, situated in Highland County, Virginia, by deed dated October 20, 1941, the aggregate market value of these interests being $18,000.00; and (3) a conveyance made to Kenny C. Harper of 550 acres, situated in the States of Virginia and West Virginia, by deed dated January 20, 1934. It is stipulated that the value of this property is $3,250.00.

The court referred this suit to a special commissioner to take evidence and report as to the description and value of all real estate and personal property owned by decedent at the time of his death; the amount of the real estate and personal property given by decedent to his son, or the heirs of his son, as advancements; the amount of real estate and personal property given and conveyed by decedent to appellant; the amount of all debts owed by decedent; and to make final settlement of the accounts of the administratrix.

Testimony was taken before the special commissioner, who reported the same and requested rulings on the following: (a) Whether appellant is entitled to all the estate of Isaac H. Harper; (b) whether it is shown by the eviddence that the heirs of Isaac H. Harper should bring into hotchpot 'all the property and money received by them'; (c) whether the gifts of money received by appellant, amounting to $7,057.58, should be brought into hotchpot by her, or did the services rendered by her to her father amount to a sufficient sum to offset such gifts; and (d) the extent, if any, the estate of Kenny C. Harper should bring alleged advancements into hotchpot.

Upon submission of the cause and the filing of the trial court's opinion, appellant moved that the court remand the cause to the special commissioners for further development, for reasons 'set out in the written opinion of the court', not specifying the exact grounds, which motion was overruled. The trial court also entered a final decree, disallowing the claim of appellant to all of the property of Isaac H. Harper; adjudging that the estate of Kenny C. Harper is not chargeable with any advancements from his father; that the gifts to appellant of $1,057.58 and $6,000.00 were advancements and must be brought into hotchpot; and that appellant is entitled to recover from the estate the sum of $1,000.00 for services rendered to the decedent during the two years preceding his death. The court's opinion, made a part of the record, applied a five-year statute of limitations to the claims for services, and reasoned that there could be an allowance for services only from June 7, 1943, until the date of death, covering approximately a two-year period.

Complaining of the two decrees, appellant admits that she received the two gifts listed in the appraisement, and states that she is willing to bring the money into hotchpot, if it is necessary for a proper distribution of the estate. She contends that she is entitled to all of the estate of Isaac H. Harper to the exclusion of the infant appellee, basing this claim on an oral contract whereby her father in return for services rendered him over a period of years, until the date of his death, promised that he would leave all of his property at his death to her.

Appellant was married in 1934 to Roy Hedrick. She states that she and her husband intended to establish a home separate from that of her parents, with whom she had been living prior to her marriage, but that as a result of the importunities of decedent and his assurance, as stated above, the nwly married couple made their home with decedent from the date of their marriage until his death, with the exception of the first year of their mariage; and that they have devoted all of their time and efforts to the personal and business affairs of decedent, managing his household and farm. She admits that she left her father's home on at least three occasions, with the intention of making her home elsewhere, but each time she returned.

She also states that during this period decedent told her that he had already 'taken care' of Kenny C. Harper by conveyances of real estate and other advancements, and had indicated that those advancements were to be considered as full satisfaction of the state of Kenny C. Harper in his estate.

She further contends that if she is prevented from specifically enforcing the alleged contract, she should, nevertheless, be entitled to compensation for the services rendered decedent over the years. She asserts that such services were of a peculiar character, so that it is impossible to establish their value by any pecuniary standard, but that their value equalled or exceeded the aggregate amount of the advancements made to her, as shown in the appraisement.

Several witnesses testified that decedent had told them that he intended to leave appellant everything he had, and that her brother had already been given everything that his father intended him to have. The decedent's pastor testified that on two occasions decedent told him, in substance, that he intended to make a will but that he thought that this was hardly necessary since he had given the 'boy' (Kenny) his share of the estate and the remainder would go to appellant. Appellant's aunt testified that appellant was at her home in the summer of 1943, and that decedent told his daughter, in the witness' presence, that if she would come back home he would give her everything he had. A similar conversation occurred at the home of a cousin, where appellant was visiting in the fall of 1943, when decedent said, in the presence of the witness and two other persons, that if his daughter returned to his home, he would leave her everything he possessed, and that Kenny had been given all that he intended him to have. A neighbor, who knew the family well, said that about a year prior to decedent's death, he told him that he was going to give Kenny's boy the Virginia farm, Kenny being then deceased, and the remainder of his property would go to appellant. Appellant's sister in law related that in a conversation in 1942, decedent had told her that he had bought the Highland County, Virginia, farm for his son, and that he intended his daughter to have the homeplace, and that at Christmas before his death decedent had told her that he wanted his daughter to have not only the homeplace but also the balance of his estate. Adam Harper, decedent's brother, who lived at the homeplace, testified that...