In Re Estate Of Elizabeth E. Fox, (No. 9999)

CourtSupreme Court of West Virginia
Writing for the CourtLOVINS.
Citation131 W.Va. 429
PartiesIn Re Estate of Elizabeth E. Fox, Deceased
Decision Date18 May 1948
Docket Number(No. 9999)

131 W.Va. 429

In Re Estate of Elizabeth E. Fox, Deceased

(No. 9999)

Supreme Court of Appeals of West Virginia.

Submitted April 6, 1948.
Decided May 18, 1948.


[131 W.Va. 429]

1. Witnesses

Under Code, 57-3-1, a witness, who is neither a party to the litigation, nor a person interested in its outcome, nor a person from, through or under whom such party or interested person derives any interest or title, may testify regarding a personal transaction with a deceased person, notwithstanding that the witness is a near relative of a party to the proceeding.

2. Contracts

The laws of the state where a contract is made and is to be performed determine the substantive rights of the parties to such contract; but in the enforcement of those rights by litigation, the procedural laws of the state where enforcement is sought control.

3. Contracts

Services rendered by a daughter-in-law to a mother-in-law, living in the same house as members of the same family, are presumed to be gratuitous.

[131 W.Va. 430]

Error from Circuit Court, Monongalia County.

Proceeding in the matter of the estate of Elizabeth E. Fox, deceased. To review a judgment of the Circuit Court of Monongalia County sustaining the County Court of Monongalia County overruling the exceptions of Nellie M. Fox to the report of the commissioner of accounts which denied her claim, claimant brings error.

Affirmed.

Hunter & Hopkins and Glenn Hunter, for plaintiff in error.

George R. Farmer, for defendant in error.

Lovins, Judge:

This case comes here on writ of error and supersedeas to a judgment of the Circuit Court of Monongalia County, and involves the validity of the claim of Nellie M. Fox against the estate of Elizabeth E. Fox for services rendered to the decedent.

Nellie M. Fox, the claimant, is the wife of Merley Fox, a son of decedent, and resides in Sharon, Pennsylvania. Elizabeth E. Fox seems to have resided in Morgantown, Monongalia County, West Virginia, but on a date, not clearly shown in the record, she went to live with her son and daughter-in-law at their home in the State of Pennsylvania. On December 18, 1942, while at the home of her son, she fell and sustained a broken hip. By reason of that injury she was confined to her bed for about seven months and to her room until her death on February 20, 1946, a period of thirty-eight months.

During the time of decedent's illness, claimant performed various nursing services, prepared and served meals to decedent in her room. Her claim against the estate is based on those services, but no charge is made against decedent's estate for room and board.

During her illness, decedent made various statements to the daughters and son-in-law of claimant, to the effect that she would pay claimant for the care bestowed upon

[131 W.Va. 431]

her; that Merley Fox and claimant would not regret their services to her; and that she felt obligated to claimant for such services.

Elizabeth E. Fox left a will by which she directed that all her property be sold by the executor of her will, and, from the proceeds of the sale thereof, she bequeathed two hundred dollars to a son, O. L. Fox; five hundred dollars to the son, Merley Fox, the husband of claimant; and disposed of the residue of the proceeds of sale of her property by bequeathing such proceeds to her four children and their descendants "equally share and share alike". The will was probated by the County Court of Monongalia County on February 25, 1946, the order of probate reciting that decedent was a resident of said county and had died therein on February 20, 1946; but it seems that she died in the Town of Sharon, Pennsylvania.

The estate having been referred to a commissioner of accounts, the said commissioner received and filed the claim of Nellie M. Fox for thirty-eight months' services, commencing on December 18, 1942, and ending on the date of decedent's death on February 20, 1946, at thirty dollars a month, amounting to eleven hundred and forty dollars. E. D. Faux, a son of decedent, filed a counter-affidavit, denying the legality of the claim and objecting to the allowance thereof. Claimant, together with her two daughters and her son-in-law, testified in support of the claim. No proof was offered by E. D. Faux or any other person in opposition to the claim. It appears from the commissioner's report that the gross amount of the estate of Elizabeth E. Fox was $4,782.55, and that the executor of her will had made disbursements of $1,785.46.

The commissioner, in his report, denied the claim of Nellie M. Fox, and she excepted to said report. On consideration of the exceptions and the report, the County Court of Monongalia County overruled the exceptions and confirmed the report. On writ of error, the Circuit Court of Monongalia County overruled the exceptions and confirmed the report. Nellie M. Fox now brings the case here by writ of error.

[131 W.Va. 432]

The conflicting contentions of the parties to this litigation give rise to the following questions:

(1) Is the testimony introduced by claimant, or any part thereof, inadmissible?

(2) Are the laws of West Virginia or of Pennsylvania applicable?

(3) Is the evidence sufficient to establish claimant's right to compensation under the laws applicable to this case?

Claimant testified, over objections, relative to the services rendered by her to decedent. It is now argued that her testimony is inadmissible on the ground that she is a party to the litigation and interested in the outcome thereof. Although, in certain cases, the rights of litigants are to be determined by the laws of another state, the procedural laws of this State govern in all cases instituted in the courts of West Virginia. Wood v. Shrewsbury, 117 W. Va. 569, 186 S. E. 294; Wick v. Dawson, 42 W. Va. 43, 24 S. E. 587; Dulin v. McCaw, 39 W. Va. 721, 731, 20 S. E. 681.

At common...

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15 practice notes
  • Moore v. Goode, No. 17299
    • United States
    • Supreme Court of West Virginia
    • November 10, 1988
    ...the harsh common law rule that foreclosed any witness who had an interest in the suit from testifying. E.g., In re: Fox' Estate, 131 W.Va. 429, 48 S.E.2d 1 (1948); Charleston Nat'l Bank v. Hulme, 117 W.Va. 790, 188 S.E. 225 (1936); Board of Educ. v. Harvey, 70 W.Va. 480, 74 S.E. 507 (1912);......
  • Wimer v. Hinkle, No. 18258
    • United States
    • Supreme Court of West Virginia
    • March 13, 1989
    ...We have traditionally held that mere relationship to a party is not a disqualifying interest under W.Va.Code, 57-3-1. In re Fox' Estate, 131 W.Va. 429, 48 S.E.2d 1, 7 A.L.R.2d 1 (1948). The Court in Strode did not explain why the wife's testimony was barred under the Deadman's Act. Presumab......
  • Thacker's Estate, In re, No. 12717
    • United States
    • Supreme Court of West Virginia
    • November 19, 1968
    ...v. Wallace, 143 W.Va. 669, 104 S.E.2d 349; Mann v. Peck, 139 W.Va. 487, [152 W.Va. 462] 80 S.E.2d 518; In re Estate of Elizabeth E. Fox, 131 W.Va. 429, Page 306 48 S.E.2d 1, 7 A.L.R.2d 1; Shew v. Prince, 119 W.Va. 524, 194 S.E 345; Painter v. Long, 69 W.Va. 765, 72 S.E. 1092; Poling v. Huff......
  • Lee v. Saliga, No. CC971
    • United States
    • Supreme Court of West Virginia
    • September 16, 1988
    ...The two plaintiffs, however, worked at the company's mine site in Kentucky. We cited Syllabus Point 2, in part, of In re Fox's Estate, 131 W.Va. 429, 48 S.E.2d 1 (1948). 13 We ultimately resolved the conflicts issue by applying Section 196 of the Restatement (Second) of Conflict of Laws. Th......
  • Request a trial to view additional results
15 cases
  • Moore v. Goode, No. 17299
    • United States
    • Supreme Court of West Virginia
    • November 10, 1988
    ...the harsh common law rule that foreclosed any witness who had an interest in the suit from testifying. E.g., In re: Fox' Estate, 131 W.Va. 429, 48 S.E.2d 1 (1948); Charleston Nat'l Bank v. Hulme, 117 W.Va. 790, 188 S.E. 225 (1936); Board of Educ. v. Harvey, 70 W.Va. 480, 74 S.E. 507 (1912);......
  • Wimer v. Hinkle, No. 18258
    • United States
    • Supreme Court of West Virginia
    • March 13, 1989
    ...We have traditionally held that mere relationship to a party is not a disqualifying interest under W.Va.Code, 57-3-1. In re Fox' Estate, 131 W.Va. 429, 48 S.E.2d 1, 7 A.L.R.2d 1 (1948). The Court in Strode did not explain why the wife's testimony was barred under the Deadman's Act. Presumab......
  • Thacker's Estate, In re, No. 12717
    • United States
    • Supreme Court of West Virginia
    • November 19, 1968
    ...v. Wallace, 143 W.Va. 669, 104 S.E.2d 349; Mann v. Peck, 139 W.Va. 487, [152 W.Va. 462] 80 S.E.2d 518; In re Estate of Elizabeth E. Fox, 131 W.Va. 429, Page 306 48 S.E.2d 1, 7 A.L.R.2d 1; Shew v. Prince, 119 W.Va. 524, 194 S.E 345; Painter v. Long, 69 W.Va. 765, 72 S.E. 1092; Poling v. Huff......
  • Lee v. Saliga, No. CC971
    • United States
    • Supreme Court of West Virginia
    • September 16, 1988
    ...The two plaintiffs, however, worked at the company's mine site in Kentucky. We cited Syllabus Point 2, in part, of In re Fox's Estate, 131 W.Va. 429, 48 S.E.2d 1 (1948). 13 We ultimately resolved the conflicts issue by applying Section 196 of the Restatement (Second) of Conflict of Laws. Th......
  • Request a trial to view additional results

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