Keys v. Keys
| Decision Date | 30 January 1923 |
| Docket Number | (No. 4682.) |
| Citation | 116 S.E. 681 |
| Court | West Virginia Supreme Court |
| Parties | KEYS . v. KEYS et al. |
Rehearing Denied April 12, 1923.
(Syllabus by the Court.)
Appeal from Circuit Court, Tyler County.
Suit by Ira B. Keys, administrator, against Mary A. Keys and others. From a decree for defendants, plaintiff appeals. Affirmed.
Robert L. Bland, of Weston, for appellant J. Ramsey, of West Union, for appellees.
MILLER, P. The present controversy arose in a suit brought by plaintiff to convene the creditors of the estate of E. M. B. Keys, deceased, to settle his accounts as administrator of said estate, and to subject to sale for the payment of his debts the real estate left by decedent, the bill alleging the personal estate to be insufficient to discharge said debts and liabilities.
The appellee Ona Stark, a granddaughter of said decedent, being made a party to said suit, and who answered the bill, appeared before the commissioner in chancery to whom the cause was referred, and in accordance with the allegations of her answer proved that her name prior to her marriage to D. J. Stark was Ona Birtholy, wife of —Birtholy; that during her marriage to said Birtholy, she with her two children resided at the home of her said grandfather for a period of about two years, taking care of him and her grandmother, both very old people, and of her aunt, an invalid; that her grandparents were quite feeble, and her grandmother and aunt were helpless all the time, and her grandfather most of the time, and that they had to be cared for like babies; that she not only cared for and nursed them, but much of the time fed the hogs, horses, sheep, cattle and chickens, milked the cows and did the domestic work for the entire family; that during her term of service and after she had been working and caring for them in this way for about a year, her said grandfather executed and delivered to her a note, which she produced and filed with the commissioner, as follows: Signed:
"E. M. B. Keys;" that he died in December 1920, when the note by its terms became due and payable, and that it had riot been paid. Her evidence so far as it related to personal transactions with the decedent was objected to, on statutory grounds, but she proved by her brother substantially the same facts and the value and extent of her services. And by other competent witnesses she proved the genuineness of the signature of decedent to said note. No evidence was offered by the plaintiff contradicting the fact of the making and delivery of the note.
The commissioner, however, reported against the validity of the note, but the court sustained Mrs. Stark's exceptions thereto and decreed the same a valid lien against said estate, and decreed that she be paid her distributive share out of the assets of said estate in the final distribution thereof; and from that decree the plaintiff and administrator has appealed.
Three propositions of law are relied on to reverse the decree: First, that being a member of decedent's family and standing in the relationship of grandfather and granddaughter, the presumption is that Mrs. Stark's services were gratuitous; second, that in the absence of any evidence of a prior express contract that her services were to be paid for, said note, if actually executed and delivered at the time it purports to have been made, was without any consideration and was not an enforceable obligation against decedent's estate; third, that the evidence of Mrs. Stark being incompetent, there was no proof of an express contract of employment, her evidence being shut out by section 23 of chapter 130 of the Code (sec. 4879).
Among the authorities relied on for the first proposition are our cases of Stansbury v. Stansbury's Adm'rs. 20 W. Va. 23, 31; Hurst's Adm'r v. Hite, 20 W. Va. 183; Riley v. Riley, 38 W. Va. 283, 18 S. E. 569; Cann v. Cann, 40 W. Va. 138, 20 S. E. 910; Thompson v. Halstead, 44 W. Va. 390, 29 S. E. 991; Swiger v. Evans, 75 W. Va. 236, 83 S. E. 917; Updike v. Titus, 13 N. J. Eq. 151; Harshber-ger's Adm'r v. Alger, 31 Grat. (Va.) 52; and Jackson's Adm'r v. Jackson, 96 Va. 165, 31 S. E. 78.
For the second proposition counsel cite and rely on among other authorities, 1 Elliott on Contracts, § 18; 1 Williston on Contracts, § 3; 1 Daniel on Neg. Inst. §§ 179 and 182; Gooch v. Gooch, 70 W. Va. 38, 73 S. E. 56, 37 L. R. A. (N. S.) 930; Harris v. Orr, 46 W. Va. 261, 33 S. E. 257, 76 Am. St. Rep. 815; Finch v. Green, 225 111. 304, 80 N. E. 318; People v. Porter, 287 111. 401, 123 N. E. 59, 7 A. L. R. 1041; Allen v. Byrson, 67 Iowa, 591, 25 N. W. 820, 56 Am. Rep. 358; and Harper v. Davis, 115 Md. 349, 80 Atl. 1012, 35 L. R. A. (N. S.) 1026, Ann. Cas. 1913A, 861.
It is undoubtedly true, as the authorities cited for the first proposition hold, that services rendered by one member to another member of a family, when standing in the close relationship stated, are presumed to be gratuitous and without consideration. Appellee's counsel did not controvert the principal proposition, but relied in part on what are regarded as exceptions to the general rule. In the Harshberger-Alger case it was said that there can be no fixed rule governing such cases, and that in the absence of an express contract, the question always is, can it be reasonably inferred that pecuniary compensation was in the view of the parties at the time the services were rendered. In Jackson's Adm'r v. Jackson, supra, right of recovery is limited to an express contract or what is equivalent thereto; if the facts proven are such that a promise can reasonably be inferred, this will be sufficient.
The converse of the proposition is that when services are performed by one at the instance and request of another, and especially when the other is benefited by the services, the law implies a contract that the party who performs the services shall be paid a reasonable compensation therefor, unless there be something in the relationship of the parties or the circumstances of the case which precludes the idea of such compensation. It was so held in Hurst's Adm'r v. Hite, supra. And this rule is recognized, if not applied, in some, if not all, of the other cases cited by counsel, to the...
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