Jackson v. Jackson, (No. 76.)

• Court: Supreme Court of West Virginia
• Writing for the Court: POFFENBARGER
• Citation: 99 S.E. 259
• Parties: JACKSON v. JACKSON et al.
• Docket Number: (No. 76.)
• Decision Date: 29 April 1919

99 S.E. 259

JACKSON
v.
JACKSON et al.

(No. 76.)

Supreme Court of Appeals of West Virginia.

April 29, 1919.

[99 S.E. 259](Syllabus by the Court.)

Bill by Floyd Jackson against Ralph C. Jackson and others. Demurrer to bill overruled, and question certified. Reversed, and demurrer to amended and supplemental bill sustained, and decision certified to circuit court.

W.S. Clark, R. S. Blair, and S. A. Powell, all of Harrisville, for plaintiff.

Adams & Cooper, of Harrisville, for defendants.

POFFENBARGER, J. The questions disposed of by the adverse ruling of the trial court upon a demurrer to a bill assailing the validity of a paper writing probated as and for the last will and testament of Ulysses Jackson, and praying an issue devisavit vel non and impeachment of the same, and certified here for review, are whether the plaintiff is a "person interested, " within the meaning of section 32 of chapter 77 of the Code, and whether lack of interest in the plaintiff apparent on the face of such a bill is a ground of demurrer.

A demurrer interposed to the original bill having the same object and also seeking cancellation of certain deeds executed by the testator in his lifetime, assigning three specific grounds: (1) Lack of a necessary party; (2) lack of interest; and (3) multifariousness —was sustained, and, upon leave granted, the bill was amended so as to bring in the omitted party, one of the heirs of the testator, and to eliminate the prayer for cancellation of the deeds. The demurrer to the amended and supplemental bill likewise assigned three specific grounds of demurrer: (1) That it shows on its face that the plaintiff is not a person interested within the meaning of the statute; (2) that the plaintiff's right to attack a release or relinquishment of his interest in his father's estate, disclosed by the bill, if any he ever had, is now barred by laches; and (3) that the suit for impeachment of the will was not institut-

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ed within the time limited by the statute. The court below overruled the demurrer, and has certified to this court the question of the sufficiency of the bill.

The will in question was executed August 20, 1912, and admitted to probate September 18, 1912. The testator left surviving him two sets of descendants, some by his first wife and others by his second wife. The plaintiff is one of the former class. He and a brother, M. B. Jackson, and three children of his deceased sister stand in the same situation and bear th, e same relation to the estate. Ralph C. Morello, Cecil C, and Fremont Jackson and Lillie Pribble constitute the other class. The first wife died in 1870, and the plaintiff was then only about 7 years old. About 2 years after her death, his father again married, and the bill alleges the introduction of the second wife into the family soon brought about a radical change in the attitude of his father toward himself, his brother,, and his sister. It charges:

"That they were required to work and labor beyond their strength, and suffered other physical abuse at the hands of their said father, due wholly or in part to the influence of his second wife exercised by her over him as aforesaid."

The bill further charges that, through the influence of the stepmother, the father transferred practically all of his affection from the older children to the younger set, discriminated against the plaintiff, his brother and sister, reduced them to a position of inferiority, denied them opportunities for education, imposed labor upon them beyond their strength, and mistreated them generally. Having arrived at the age of 21 years, the plaintiff, in 1891, left his father's home and took up his residence in the West. At a date not disclosed by the bill, the sister married, and became the mother of three children. Prior to the year 1898, the brother also took up his residence in the West.

In that year, the plaintiff returned to his father's home in distress. He was needy, despondent, and afflicted. The bill alleges that his brother was then in a hospital in the West, and his sister needy and afflicted with an incurable disease, from which she died about a year later. These circumstances induced him to apply to his father for financial assistance for himself, his brother, and his sister. About a month or six weeks after this application had been made, his father informed him that he had concluded to give to each of the older children $2,000, for which they would be required to execute receipts. Some time later, he tendered the plaintiff said sum of $2,000 and a receipt and agreement by which he was required to relinquish all of his interest in his father's estate, in consideration of that sum of money. At first he declined to take the money and sign the agreement, but later he did accept and sign. The bill alleges, how ever, that he did so upon an understanding and agreement with his father that the latter would thereafter sign a paper which the plaintiff had presented to him, to the effect that, notwithstanding the receipt, he and his brother and sister would be provided for in the distribution of the estate. The three separate receipts signed by the plaintiff, his brother and sister, were acknowledged and admitted to record in the clerk's office of the county court of Ritchie county. The one executed by the plaintiff reads as follows:

"November second, 1898, I have this day received of my father, Ulysses S. Jackson of Cisko, West Virginia, the sum of two thousand ($2,000.00) dollars, which sum has been advanced to me by my said father in full of all interest that I may have, or may hereafter have, in his estate, and I hereby accept said sum of two thousand dollars as my full share of his estate, and relinquish all interest or claim present, or in the future, against said estate."

It is alleged that the promise to disregard the receipt, in the final disposition of the testator's estate, was frequently repeated, with solemn assurances, after the signing of the receipt. Within a short time after the execution of that paper, the plaintiff again departed for the West, and did not return until April, 1907. On this occasion, his father again declined to sign the paper he had prepared for contradiction or avoidance of the receipt and release, but he repeated his assurance of intention and purpose to disregard them. He accompanied the plaintiff on his return as far as Parkersburg, and at that place and upon the journey repeated this assurance. Further allegations respecting this transaction are that the stepmother's influence prevented the testator from signing the instrument of avoidance, at the time of the execution of the receipt, postponed it from time to time, and finally defeated it altogether. She died in 1909, and after her death the testator entered upon and pursued a course of debauchery and licentiousness, which brought about trouble constituting partial inducement for conveyances of substantially all of his land to his children by the second wife, and affliction which occasioned his death.

At the date of the plaintiff's departure from the ancestral home, as well as the date of his father's death, the estate, including that conveyed to the children by the second wife, was worth, the bill alleges, $50,000 or $60,000, and consisted largely of real estate which the father had inherited, in an unimproved condition; and the first wife and her children contributed very largely by their labor to its enhancement in value by improvement. At a time and in a manner not disclosed by the bill the testator gave his son Fremont Jackson property equivalent to his full share in the estate, and he was not made a party to the original bill, be-

[99 S.E. 261]

cause the plaintiff did not desire to contest the provision made for him. Deeming him to have been adequately provided for, the testator gave him nothing by the will. By a deed dated May 10, 1910, the testator conveyed to Cecil C. Jackson a tract of land, containing 364 acres, and by three separate deeds dated August 16, 1910, he conveyed to Morello Jackson 290 acres, to Ralph C. Jackson 321 acres, and to Lillie Pribble 210...