Mann v. Peck, 10598

• Citation: 139 W.Va. 487,80 S.E.2d 518
• Decision Date: 16 March 1954
• Docket Number: No. 10598,10598
• Court: Supreme Court of West Virginia
• Parties: MANN, v. PECK et al.

Page 518

80 S.E.2d 518

139 W.Va. 487

MANN, v. PECK et al.

No. 10598.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 26, 1954.

Decided March 16, 1954.

Syllabus by the Court

1. Pt. 3 Syl., Willhide v. Biggs, 118 W.Va. 160 , applied.

2. The question whether a witness is competent to give material testimony 'in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased, * * *', under the provisions of Code, 57-3-1, must be raised and determined in the trial court, before the competency of such witness may be challenged in this court on writ of error or appeal.

3. 'The findings of fact of a trial chancellor, based on conflicting evidence, will not be disturbed on appeal, unless clearly wrong or against the plain preponderance of the evidence.' Holt Motors, Inc. v. Casto, 136 W.Va. 284 .

H. E. DeJarnette, W. Cody Fletcher, Princeton, for appellant.

Sherman Ballard, Peterstown, for appellee.

RILEY, Judge.

R. P. Mann brought this suit in equity in the Circuit Court of Monroe County on behalf of himself and of all creditors, known and unknown, of Lula Christian, deceased, against the defendants, C. W. Peck, Administrator of the Estate of Lula Christian, deceased; Hinton Hospital, a corporation; and D. C. Christian, for the purpose of selling decedent's real estate to make assets available to satisfy claims outstanding against the decedent's estate. From a decree declaring that the personal property in decedent's estate is insufficient to pay the debts, allowing the claim of the plaintiff, R. P. Mann, in the amount of $879.67, based upon two demand promissory notes, and decreeing the sale of decedent's real estate by named special commissioners, the administrator prosecutes this appeal.

Lula Christian, about sixty years of age, residing in Monroe County, died intestate on August 14, 1950, leaving D. C. Christian, her son, as her only heir at law. Later defendant, C. W. Peck, qualified as administrator of decedent's estate. The estate was appraised at $4,216.85, the real estate having been appraised at $3,100. The accounts of the administrator, having been referred to a commissioner of accounts, notice was given, as required by Code, 44-4-11.

Pursuant to this notice, the plaintiff, R. P. Mann, decedent's brother presented an itemized claim, consisting of four items, against the estate in the total amount of $965.40, two of which items, in the respective amounts of $631 and $248.67, were evidenced by two promissory demand notes, executed during decedent's last illness, and the other two items of which were claims for services alleged to have been rendered decedent during her lifetime, in the respective amounts of $52 and $33.73, or a total of $85.73. To this claim the administrator set up a claim against Mann for money alleged to have been received by the latter during the decedent's lifetime from the sale of a cow, in the amount of $150, and chickens, in the amount of $28, both of which were owned by decedent, it being asserted by the administrator that Mann had not accounted to the estate for the proceeds of these sales.

The commissioner of accounts allowed plaintiff's claim in the full amount of $965.40, and refused the items of $150 and $28, claimed by the administrator.

On December 7, 1951, the commissioner of accounts completed his report, the only exception taken thereto being presented by the administrator; and thereafter on December 1, 1951, the commissioner of accounts filed his report in the county court clerk's office as required by statute.

On January 7, 1952, Mann, by his attorney, moved the County Court of Monroe County to consider the report of the commissioner of accounts and to ratify it. Thereupon, the defendant administrator, by his attorney, filed an exception to the report, stating as ground for the exception that the claim of Hinton Hospital, a corporation, for services rendered during decedent's last illness, amounting to $325, had not been allowed. The county court sustained the administrator's exception to the report, and approved the commissioner's report, with the following qualification: That the administrator allow 'the claim of Hinton Hospital as a preferred claim in the amount of $50, and allow the residue of the claim as a general claim against the estate.'

Then followed the bringing of this suit by a precipe filed on March 3, 1952, in which, as heretofore indicated, the plaintiff sought to have the decedent's real estate sold to satisfy the outstanding indebtedness of the estate. In this suit the matters arising therein were referred to a commissioner in chancery on April 1, 1952; and on May 5, 1952, decedent's administrator Peck was granted a writ of error by the Circuit Court of Monroe County to the order of the county court allowing plaintiff's claim in the full amount. Depositions were taken in this suit in equity on June 24, and July 8, 1952; and on July 8, 1952, the commissioner in chancery filed his report in compliance with the decree of the Circuit Court of Monroe County.

On July 11, 1952, the circuit court by order entered on that day, to which no objection was made, consolidated the case arising on the writ of error to the order of the county court with the suit in equity now before this Court on appeal.

In the suit in equity the circuit court entered a decree of sale, which recited, inter alia, that 'upon consideration whereof, the exceptions to the said report are sustained as to the open account of R. P. Mann amounting to $85.73, which is disallowed, and as to the other matters set forth in said report, the exceptions are overruled and the said report as modified is confirmed.' This decree further recites that the personal property in the hands of the administrator, which is available for the payment of debts, is not sufficient to pay the debts of decedent's estate, and that it will be necessary to subject decedent's real estate to the payment thereof; and further it is 'adjudged, ordered and decreed that unless the said D. C. Christian, or someone for him, shall pay the said debts, with interest thereon from July 8, 1952, the date of the said report, an the costs of this suit within thirty (30) days from the entry of this order, then' the commissioners named in the decree 'for the purpose, shall offer the said real estate of decedent for sale at public auction on terms of sale specified in the decree.'

The only question before this Court on this appeal is whether decedent's brother, R. P. Mann, the plaintiff in this suit, has properly proved the part of his claim evidenced by the two notes in the total amount of $879.67, with interest thereon from July 8, 1952, the date of the report of the commissioner in chancery.

As the solution of this question involves the sufficiency of proof as to the alleged services rendered by plaintiff to decedent during her lifetime, and in particular during her last illness, and the execution of the two notes evidencing plaintiff's claim by the decedent affixing her mark to her signatures on the notes, is largely dependent upon plaintiff's testimony, this record raises the initial question whether plaintiff was a competent witness under Code, 57-3-1, which provides, in part, that 'No party to any action, suit or proceeding, nor any person interested in the event thereof, * * *, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased, * * *.' Certainly, the question whether plaintiff rendered services to the decedent and the nature thereof involves a 'personal transaction or communication' between plaintiff and decedent within the meaning of Code, 57-3-1. Owens v. Owens' Adm'r, 14 W.Va. 88, 94; Poling v. Huffman, 48 W.Va. 639, 649, 37 S.E. 526. And the factual questions whether decedent executed the two notes in question by affixing her mark to her signatures and whether at the time of the execution of the notes she was of sufficiently sound mind to understand the nature of the transaction, in which she was engaged, likewise involve personal transactions within the inhibitations of the statute between the witness and the decedent. Poole v. Beller, 104 W.Va. 547, 551, 140 S.E. 534, 58 A.L.R. 207.

The plaintiff, being the holder of the two notes upon which his claim is based and a party to this suit, was under the statute incompetent to testify, and such incompetency would have precluded recovery, had timely objection been made to its admission. Beginning with the early case of Middleton's Ex'r v. White, 5 W.Va. 572, it was for many years the settled law in this jurisdiction that an objection to the testimony of an incompetent witness may be made for the first time in this Court. See Rose & Co. v. Brown, 11 W.Va. 122; Martin, Adm'x v. Smith, 25 W.Va. 579, Kimmel, Adm'r v. Shroyer, 28 W.Va. 505; Vanscoy v. Stinchcomb, 29 W.Va. 263, 11 S.E. 927; Long...