Johnston v. Bee
| Decision Date | 23 September 1919 |
| Citation | 100 S.E. 486,84 W.Va. 532 |
| Parties | JOHNSTON ET AL. v. BEE ET AL. |
| Court | West Virginia Supreme Court |
Submitted September 16, 1919.
Syllabus by the Court.
The handwriting of a deceased person is not necessarily nor always a personal transaction or communication between such person and another living and claiming rights under or against a document purporting to have been signed by the former; and if the latter knows the handwriting of the former, and has obtained his knowledge thereof otherwise than by observation of the deceased person's act of writing or some other personal transaction, he is competent to express his opinion as to the genuineness of the signature in question.
Grandchildren who have obtained their knowledge of their grandmother's handwriting only by inspection and repeated readings of letters from the grandmother to their mother, preserved by the family for a long period of time for sentimental reasons are qualified to testify to their opinions as to the genuineness of the grandmother's signature.
The opinion of a witness as to the genuineness of a signature based upon limited opportunities for knowledge of the handwriting of the person whose signature is in question, may have but little probative value, but it is admissible.
As the opinions of nonexpert witnesses testifying merely from comparison of signatures, as to the genuineness of a particular signature, are entitled to no greater weight than the opinions of the jurors or the judge, only experts can so testify.
To be competent for such purpose, however, a witness need not be a professional handwriting student, critic, or expert. It suffices that in some way he has acquired peculiar knowledge and skill respecting the determination of the genuineness of written instruments and signatures--more of such skill and knowledge than men ordinarily have. Bank cashiers are handwriting experts within the meaning of the rule.
Ancient letters, shown by the testimony of members of a family to have been written by the person whose signature is in question to her daughter, and preserved, for sentimental reasons, long after the daughter's death, and ancient deeds purporting to have been signed by such person and found in a public office in which they were lodged for recordation, may be used as standards of comparison on the issue as to the genuineness of the signature.
A written and sealed, but unacknowledged, declaration by a married woman of her intention to invest a trust fund in her hands in a certain tract of land then owned by her and her husband jointly, reciting the source of the fund, the previous conveyance of the land, and intent thereafter so to invest the fund, is not sufficient to prove actual investment of the fund in the land.
Being unable to dispose of or incumber her real estate, without the joinder of her husband in a deed or other contract respecting it, in the manner prescribed by law, a married woman cannot alone covenant to stand seised of her land to the use of another, nor declare a trust in it. Though she may bind her equitable separate estate by her sole contract so as to make it liable in equity, her separate statutory estate stands upon a different footing, and cannot be so bound.
While a declaration of intent to create a trust in property, made by a feme sole or other person having unlimited power of disposition of his property, may be binding upon him as a covenant to stand seised, or as a bargain and sale of the property, if founded upon a valuable consideration, a married woman is incapable of binding her separate statutory real estate in such manner.
A mere declaration of intention to invest a trust fund in certain property does not create a trust therein. Impression of a trust upon the property requires actual investment of the fund in it.
Under the prayer for general relief in a bill seeking enforcement of an alleged trust in land, praying specially therefor, disclosing prima facie liability for a sum of money on the part of the alleged trustee, but failing as to the trust in the land, for lack of proof of investment of the fund in the land, there may be a decree for the trust fund, upon a prayer therefor at the bar of the court. But if the bill has been dismissed without the interposition of such a prayer in the court below or the award of such relief, the decree will be reversed in so far only as it dismissed the bill, and the cause remanded, with leave to the plaintiff to ask a decree for the amount of the trust fund.
In such case, costs in the appellate court will be awarded to the appellants, as the parties substantially prevailing.
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 G. Woods and John M. McGrath, both of Princeton, for appellees.
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 1887, 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 Riticor 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 of land, situated at or near Princeton, in Mercer 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. McCreery, 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. Recd 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...
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