Keys v. Keys, (No. 4682.)

CourtSupreme Court of West Virginia
Citation116 S.E. 681
Decision Date30 January 1923
Docket Number(No. 4682.)
PartiesKEYS . v. KEYS et al.

116 S.E. 681

KEYS .
v.
KEYS et al.

(No. 4682.)

Supreme Court of Appeals of West Virginia.

Jan. 30, 1923.


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: "Camp, W. Va., Jan. 26, 1916. I promise to pay to the order of Ona Birtholy $1000.00 for work at my death." Signed:

[116 S.E. 682]

"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...

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16 practice notes
  • Thacker's Estate, In re, No. 12717
    • United States
    • Supreme Court of West Virginia
    • November 19, 1968
    ...claim without the testimony of the claimant. See In Re Estate of John C. Gilbert, 115 W.Va. 599, 177 S.E. 529; Keys v. Keys, 93 W.Va. 33, 116 S.E. 681. The circuit court found from the evidence that the claimant 'did render valuable personal services to the decedent, Paul S. Thacker, in his......
  • Hedrick v. Harper, No. 10231
    • United States
    • Supreme Court of West Virginia
    • November 21, 1950
    ...John C. Gilbert, 115 W.Va. 599, 177 S.E. 529; Browning v. Browning, 108 W.Va. 81, 150 S.E. 233; Keys, Admr. v. Keys, et al., 93 W.Va. 33, 116 S.E. 681; Thompson v. Halstead et al., 44 W.Va. 390, 29 S.E. 991; Broderick v. Broderick, 28 W.Va. 378; and Stansbury v. Stansbury, 20 W.Va. A simila......
  • In Re Estate Of Elizabeth E. Fox, (No. 9999)
    • United States
    • Supreme Court of West Virginia
    • May 18, 1948
    ...C. Gilbert, 115 W. Va. 599, 177 S. E. 529; Browning v. Browning, 108 W. Va. 81, 150 S. E. 233; Keys, Admr. v. Keys, et al, 93 W. Va. 33, 116 S. E. 681; Thompson v. Halstead, et al, 44 W. Va. 390, 29 S. E. 991; Broderick v. Broderick, 28 W. Va. 378; and Stansbury v. Stansbury, 20 W. Va. 23. ......
  • In Re Fox' Estate., No. 9999.
    • United States
    • Supreme Court of West Virginia
    • May 18, 1948
    ...of Gilbert, 115 W.Va. 599, 177 S.E. 529; Browning v. Browning, 108 W.Va. 81, 150 S.E. 233; Keys, Adm'r, v. Keys et al., 93 W.Va. 33, 116 S.E. 681; Thompson v. Halstead et al., 44 W.Va. 390, 29 S.E. 991; Broderick v. Broderick, 28 W.Va. 378; and Stansbury v. Stansbury, 20 W.Va. 23. The same ......
  • Request a trial to view additional results
16 cases
  • Thacker's Estate, In re, No. 12717
    • United States
    • Supreme Court of West Virginia
    • November 19, 1968
    ...claim without the testimony of the claimant. See In Re Estate of John C. Gilbert, 115 W.Va. 599, 177 S.E. 529; Keys v. Keys, 93 W.Va. 33, 116 S.E. 681. The circuit court found from the evidence that the claimant 'did render valuable personal services to the decedent, Paul S. Thacker, in his......
  • Hedrick v. Harper, No. 10231
    • United States
    • Supreme Court of West Virginia
    • November 21, 1950
    ...John C. Gilbert, 115 W.Va. 599, 177 S.E. 529; Browning v. Browning, 108 W.Va. 81, 150 S.E. 233; Keys, Admr. v. Keys, et al., 93 W.Va. 33, 116 S.E. 681; Thompson v. Halstead et al., 44 W.Va. 390, 29 S.E. 991; Broderick v. Broderick, 28 W.Va. 378; and Stansbury v. Stansbury, 20 W.Va. A simila......
  • In Re Estate Of Elizabeth E. Fox, (No. 9999)
    • United States
    • Supreme Court of West Virginia
    • May 18, 1948
    ...C. Gilbert, 115 W. Va. 599, 177 S. E. 529; Browning v. Browning, 108 W. Va. 81, 150 S. E. 233; Keys, Admr. v. Keys, et al, 93 W. Va. 33, 116 S. E. 681; Thompson v. Halstead, et al, 44 W. Va. 390, 29 S. E. 991; Broderick v. Broderick, 28 W. Va. 378; and Stansbury v. Stansbury, 20 W. Va. 23. ......
  • In Re Fox' Estate., No. 9999.
    • United States
    • Supreme Court of West Virginia
    • May 18, 1948
    ...of Gilbert, 115 W.Va. 599, 177 S.E. 529; Browning v. Browning, 108 W.Va. 81, 150 S.E. 233; Keys, Adm'r, v. Keys et al., 93 W.Va. 33, 116 S.E. 681; Thompson v. Halstead et al., 44 W.Va. 390, 29 S.E. 991; Broderick v. Broderick, 28 W.Va. 378; and Stansbury v. Stansbury, 20 W.Va. 23. The same ......
  • Request a trial to view additional results

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