Lee v. Patton

• Decision Date: 09 November 1901
• Parties: LEE v. PATTON et al.
• Court: West Virginia Supreme Court

40 S.E. 353

50 W.Va. 20

LEE v. PATTON et al.

Supreme Court of Appeals of West Virginia.

November 9, 1901

Submitted January 30, 1901.

Syllabus by the Court.

1. Where the decree appealed from is right, the same will not be reversed because the circuit court was incorrect in its reasons for its conclusion.

2. Under section 23, c. 130, Code, a donee is incompetent as a witness to prove the delivery to himself of a gift by the donor; the latter being dead when the testimony is offered.

Appeal from circuit court, Ritchie county; Romeo H. Freer, Judge.

Action by Ida M. Lee against D. B. Patton and others. Decree for defendants, and plaintiff appeals. Affirmed.

M. K Duty, for appellant.

M. R Crouse, for appellees.

MCWHORTER J.

Ida M Lee filed her bill in the circuit court of Ritchie county against D. B. Patton, sheriff, and as such administrator of the estate of E. C. C. Lee, deceased, setting up a claim against said estate for $900, evidenced by certain promissory notes, a gift and advancements made to plaintiff by said Lee in his lifetime in consideration of her services to said Lee etc. Afterwards it was ascertained that Lee had made a will which was duly probated, whereby he devised his real estate and bequeathed his personal property to his children, V. Lee, E. H. Lee, and L. E. Lee, and his grandson, Lionel Lee, and naming L. E. Lee as his executor. Plaintiff filed her amended and supplemental bill, making the said devisees and legatees parties thereto, referring to and making the original bill a part of said amended and supplemental bill, showing that on the 10th of January, 1882, said E. C. C. Lee and Catharine T. Lee, his wife, by indenture of apprenticeship entered into by them with the trustees of the Belmont County Children's Home, in the state of Ohio, took from said institution the plaintiff, who was then nearly 10 years of age, who was to faithfully serve them and correctly demean herself during the period of her apprenticeship, which should terminate on the 25th day of July, 1890,--the said Lee and wife covenanting to and with said trustees and the plaintiff, whose name was Ida M. Brister, that they would teach the plaintiff the trade and occupation of housekeeping, and provide her during said apprenticeship with proper food, lodging, medicine, washing, clothing, and all necessaries suitable for an apprentice, treat her kindly, and exercise over her parental care and control as a member of the family, and send her to the district school where they resided "at least four months in each year of her apprenticeship," and at the expiration of the term of service to furnish her with a new Bible, at least two suits of common wearing apparel, one good and sufficient suit for attending public religious worship, and $50 in money, which indenture or contract was filed with the bill,--and alleging that when she was taken into the Lee home she was given the name of Lee, which she accepted, and had been known and called by it ever since; that at the time she went there the family consisted of Lee, his wife, three sons, and two daughters; that shortly afterwards the eldest daughter died, and when plaintiff was about 14 years of age the wife died; that some four or five years after that the other daughter, who was younger than plaintiff, died also, leaving the entire care of all the domestic matters on plaintiff's hands to attend to and care for, she presiding at the table of said E. C. C. Lee and over his house-hold affairs, and administering to him in sickness and in health, the same as if she were his own child, until she was nearly 21 years of age, having remained with him at his urgent request and solicitation for nearly three years after her apprenticeship had terminated; that it was the unkind treatment of his sons that compelled her to leave Lee's home even then, and seek a home and living elsewhere; that, although not related to said Lee, yet he took the place of a father to her, and she looked upon him as such, he taught her to call him "papa," and he professed great affection and sympathy for her, and taught her to love and obey him, and to place implicit confidence in him, all of which she did, but that he failed to educate her as he had agreed to do; that not only during the time plaintiff remained with Lee after her apprenticeship had terminated, and before, but particularly about the year 1891, and from that time to nearly a year before his death, he at various times promised her and told others that in consideration of her long and faithful and valuable services performed by her for him and his family in their domestic affairs, and for her untiring kindness to him always in sickness and health, and his failure to give her the education he had agreed to, he intended for it all to well provide for her before he died, frequently saying to the amount of $800, and that he would make the provision for her so she could get it after his death; that Lee placed in the hands of Silas Taylor, about the year 1891 or 1892, two notes of $250 each, made by C. K. Williamson, one payable June 1, 1893, the other June 1, 1894, and another note for $250, which notes Lee assigned to plaintiff, and made them payable to her, so no one else could collect them, which she accepted as a gift and advancement for her said services, etc.; that he then and there delivered them for her to Silas Taylor, a neighbor and responsible gentleman, to keep for her; that afterwards, on the 12th day of January, 1895, some two years after she left his home, while she was living at West Union, in further carrying out his promises, said Lee made his note for $150, payable to her one year after date, and delivered it to her by mail at West Union, which she accepted, and took immediate custody and control of it as her property; that he afterwards wrote her several times, urging her to send him the last-mentioned note, so he could place it also for her in the hands of said Taylor, giving as a reason that he was afraid she would get the note misplaced and that somebody else might collect it and get the money; that she did not send it until she received his letter, dated the 15th of March, urging her to send it to him only for said purpose; that he acknowledged receipt of it by letter of March 20th, and on the 2d day of April, 1895, he wrote her that he had given the note to Taylor to keep for her; that afterwards, at Lee's earnest solicitation, she returned to stay at his home; that after she had been there about a month, without plaintiff's authority or direction, Lee went to said Taylor and got all her said notes and papers, and handed them to her, saying: "Here are those notes and papers of yours, that I gave you. Take them to your room and lock them up in your trunk, where they will be perfectly safe, so the boys [meaning his own boys] cannot get them, so you can collect them when due;" that she did so, and kept them until about the last of July, 1895, when said Lee, by false and fraudulent representations made to her, as she alleges, for the purpose of cheating and defrauding her out of said notes and papers, which were then of the value of fully $900 or more, induced her to get said notes and papers, pretending to her that he wanted to collect the money for her that was due her on some of them, and, relying on such representations, she handed them to him, but only for the purpose of his collecting the money for her; that he did collect the money for her on the Williamson notes, amounting to about the sum of $625, principal and interest; and that he, from that time until his death, refused either to return to her the...