Johnston v. Bee

• Decision Date: 23 September 1919
• Citation: 100 S.E. 486
• Parties: JOHNSTON et al. v. BEE et al.
• Court: West Virginia Supreme Court

100 S.E. 486

JOHNSTON et al.

v.BEE et al.

Supreme Court of Appeals of West Virginia.

Sept. 23, 1919.

(Syllabus by the Court)

Williams, J., dissenting in part.

Appeal from Circuit Court, Mercer County.

Suit by Pearl McCreery Johnston and others against I. E. Bee and others. From a decree dismissing the bill on final hearing plaintiffs appeal. Decree, so far as dismissing the bill, reversed, and cause remanded.

P. H. M. Patterson, of Beckly, R. D. Bailey, of Baileysville, and French & Easley, of Bluefield, for appellants.

Hugh 6. Woods and John M. McGrath, both of Princeton, for appellees.

POFFENBARGER, J. The decree complained of dismisses, on final hearing, a bill filed for enforcement of an alleged express executed trust in real estate, founded upon a valuable consideration.

The relationship of the parties is unquestioned. If there is such a trust as is set up and claimed in the bill, the plaintiffs are entitled to the benefit thereof. They are the heirs at law of M. H. Lacey, who departed this life intestate prior to the year 1865, and at the date of his death owned a tract of land in Loudoun county, Va., containing 160 acres. On his death the title to this land vested by descent in his two children, Mollie K. McCreery, who died in 18S7, leaving several children, and her brother, Andrew J. Lacey, who died intestate in 1906, subject to the dower right of Mary L. Lacey, the widow, who afterwards married Dr. Isaiah Bee, of Mercer county, and became a resident of Princeton, W. Va. She died in 1907, leaving as her survivors her second husband and a son by him. The former died in November, 1912. The plaintiffs are the children of Mrs. McCreery and Andrew J. Lacey, claiming under the alleged declaration of trust made by their grandmother, Mrs. Mary L. Bee, in 1875, and the defendants are the representatives of the estate of Dr. Isaiah Bee, and the devisees under his wife's will. Before his death, Dr. Bee conveyed to his son, I. E. Bee, and his daughter-in-law valuable real estate and gave them the balance of his estate by will. Mrs. Bee gave all of her estate to her husband, in trust for a little girl reared by the family, and known in this record as Nellie Bee Campbell.

The bill proceeds upon the theory of a substitution of certain real estate at or near Princeton, in Mercer county, for one-third of the Loudoun county land, to the rents and profits of which the widow was entitled for the period of her natural life. By a deed dated January 11, 1875, Andrew J. Lacey, Mrs. McCreery, and her husband, and Mrs. Bee and her husband, conveyed the Loudoun county tract of land to John Biticor for a cash consideration of $1,600. Of this sum two thirds belonged to the heirs absolutely, and they owned the other third, subject to the right of the widow to have the interest on it for and during her natural life. The bill charges that this one third, less its pro rata share of the expenses of sale, was invested by Mrs. Bee in a tract of 130 acres ofland, situated at or near Princeton, in Merger county, and conveyed to her and her husband by a deed dated March 3, 1875, and executed by William A. Wiley and Rhoda V. Wiley, his wife. The deed conveying the Loudoun county tract of land was admitted to record March 8, 1875, and the one conveying the Mercer county land March 10, 1875. The former was acknowledged on the day of its date, and the latter on the day after that of its date. After an unavailing effort to set aside the will of Mary L. Bee, and after the death of the late Senator John W. McOreery, the plaintiffs found among his papers, between June 1 and June 15, 1917, a paper relied upon as a written declaration of the trust claimed by the bill. Senator McCreery had been a lawyer, a business man, and no doubt the legal adviser of Mrs. Bee in the sale of the Loudoun county land. The paper in question reads as follows:

"$523.00. Reed of John W. McCreery the sum of Five hundred & twenty three dollars, one-third of the amount realized from the sale of Laceyville, (a tract of 160 acres of land lying in the County of Loudoun, in the State of Virginia, which belonging to the estate of my late husband Dr. M. H. Lacey Deed.) after deducting costs and expenses for selling said land, total sum $1569.00, which said sum of five hundred and twenty three 00/100 Dollars, one third of the $1569.00, I am going to invest in a tract of land, lately bought of Wm. Wiley & wife, lying near Princeton & containing 130 acres & receive the rents and profits of said land, during my life time in lieu of interest on said sum (said land was conveyed by said Wiley & Wife to Dr. I. Bee & myself March 3rd 75, & recorded in Deed Book No. 7.

"Witness my hand and seal, Mary L. Bee. [Seal].

"May 5th 1875."

The principal grounds of defense were:

(1) Nonexecution by Mary L. Bee of the paper relied upon as a declaration of trust; (2) lack of actual investment of the said sum of $523 in the Mercer county land; and (3) legal inability or incapacity of the alleged declarant to carry the trust into execution, her right and title in the land having been irrevocably fixed, it is claimed, by the deed from Wiley and wife before the date of the declaration of trust. On the trial the court below found for the plaintiffs on the first issue thus tendered, and for the defendants upon the second. This result rendered it unnecessary, in the opinion of the court, to enter upon any inquiry as to the soundness of the third position taken by the defendant. A contention of the plaintiffs is that the instrument relied upon creates an executed trust, since a court of equity regards what a party has agreed to do as having been done.

The objection interposed to the evidence of some of the plaintiffs as to the handwriting of the signature to the declara tion of trust on the ground of incompetence by reason of interest is not well founded, if we are to be governed by the weight of authority. Of course, none of these parties would be competent as witnesses to prove the actual signing of the paper by Mrs. Bee, nor to qualify themselves by observation of her act of signing any paper; for that would have been a personal transaction within the meaning of the law. State ex rel. v. Maxwell, 64 N. C. 313; Rush v. Steed, 91 N. C. 226; Wilber v. Gillespie, 127 App. Div. 604, 112 N. Y. Supp. 20. A decided weight of authority affirms the right of an interested person or party to testify to the handwriting of a signature purporting to be that of a deceased person, if he is otherwise qualified, even though he would be an incompetent witness to testify to the act of signing. In Iowa, Massachusetts, New York, North Carolina, Texas, and Wisconsin the courts hold that such testimony involves no more than a matter of opinion, and does not relate to a personal transaction or communication between the witness and the decedent. 40 Cyc. 2327; Ware v. Burch, 148 Ala. 529, 42 South. 562, 12 Ann. Cas. 669, note 671; 25 Am. & Eng. Ency. L. 261. On the other hand, the contrary has been held in Alabama, Georgia, Kentucky, Missouri, and Pennsylvania, as will be seen by reference to the books already cited. The intermediate court of appeals of Indiana has apparently held both ways as to such testimony. Merritt v. Straw, 6 Ind. App. 360, 33 N. E. 657; Shirts v. Rooker, 21 Ind. App. 420, 52 N. E. 629. The decisions adopting the minority rule take the view that, inasmuch as proof of the signature authenticates or validates the document constituting the basis of the action, it virtually covers the whole case, and impliedly proves the entire transaction represented by the document. If, however, the ultimate effect of evidence admitted against the estate of a deceased person were the sole test of admissibility, much evidence not relating to personal transactions or communications would be inadmissible. Much authority and the terms of the statute deny that it is the true test. As to facts not amounting to or involving such transactions or communications, interested witnesses are competent. This is an unqualified and unlimited implication arising from the very words of the statute. There is no proviso saying they are competent only in the event that the fact has only limited probative force respecting the right involved or none at all. The statutory test is whether the fact in question is a personal transaction or communication or involves one. Davidson v. Browning, 73 W. Va. 276, 80 S. E. 363, L. R. A. 1915C, 976. The chief purpose of the statute is to prevent the living party to a transaction from testifying because the other, being dead, cannot be produced to contradicthim, in case of false swearing. Denial of right to the former to testify puts them on an equality. Faulkner v. Thomas, 48 W. Va. 148, 35 S. E. 915. If so, its reason does not apply here. One party cannot very well contradict another's mere opinion. Whether the witnesses in question were competent depends upon the means by which they obtained the knowledge of the handwriting of the decedent, constituting the basis of their opinions. They are not disqualified by reason of the nature of the fact to which their testimony relates.

The witnesses now under consideration, parties plaintiff, derived their knowledge of the handwriting of Mrs. Bee from letters written by her to their mother, in their early childhood, preserved by their mother until her death, and by them afterwards, for sentimental reasons, and frequently read and perused. These letters were not communications between them and Mrs. Bee, and they make no claim to any other source of knowledge of her handwriting.

Their inspection of these letters also qualified them to express opinions as to the genuineness of the signature in question. There could scarcely be a better index to the genuineness of the letters than their preservation as heirlooms, tender remembrances, or sacred relics for more than 40 years. Besides, it is clearly revealed by their contents—messages of solicitude, advice, and love from moth...