Moore v. Goode, No. 17299

CourtSupreme Court of West Virginia
Writing for the CourtMILLER
Citation180 W.Va. 78,375 S.E.2d 549
PartiesAvis S. MOORE, etc. v. Sarah GOODE, Appellant Harry Morris, et al., Appellees. West Virginia
Decision Date10 November 1988
Docket NumberNo. 17299

Page 549

375 S.E.2d 549
180 W.Va. 78
Avis S. MOORE, etc.
v.
Sarah GOODE, Appellant Harry Morris, et al., Appellees.
No. 17299.
Supreme Court of Appeals of
West Virginia.
Nov. 10, 1988.

Page 551

[180 W.Va. 80] Syllabus by the Court

1. "Findings of fact by a trial court without a jury will not be set aside unless they are clearly wrong." Syllabus Point 1, McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972).

2. "Our legislature has manifested its intent to abrogate common law prohibitions against inheritance by [children born out of wedlock], and has given them rights of inheritance from and through their mothers. This, however, creates an impermissible discrimination that we, applying the doctrine of neutral extension, must remedy by requiring that Code, 42-1-5 be applied to permit [children born out of wedlock] to inherit from both mother and father." Syllabus Point 3, Adkins v. McEldowney, 167 W.Va. 469, 280 S.E.2d 231 (1981).

3. The legislative enactment of a clear and convincing proof standard to establish paternity in W.Va.Code, 48-7-4(c) (1983), and carried into W.Va.Code, 48A-6-4 (1986), overrules the proof beyond a reasonable doubt standard set in State ex rel. Toryak v. Spagnuolo, 170 W.Va. 234, 292 S.E.2d 654 (1982).

4. The determined father language contained in W.Va.Code, 48-4-1(b) (1985), which is part of our adoption statute, is not intended to be the means by which paternity must be established for purpose of intestate succession in inheritance.

5. A judgment from a court lacking subject-matter jurisdiction is a nullity. Consequently, it cannot be admitted into evidence to prove the facts therein contained.

6. The ancient document rule, which is contained in Rule 803(16) of the West Virginia Rules of Evidence, provides: "Statements in a document in existence twenty years or more the authenticity of which is established" are admissible. However, this rule carries the qualification that the document itself or its contents not be suspicious with regard to its genuineness and reliability.

7. The vital statistics exception to the hearsay rule, which is contained in Rule 803(9) of the West Virginia Rules of Evidence, ordinarily pertains to those facts or events contained in a report which the public official had a duty to record. Under W.Va.Code, 16-5-27(b), "[a] certified copy of a certificate [issued by the state registrar of vital statistics] or any part thereof ... shall be considered for all purposes the same as the original, and shall be prima facie evidence of the facts therein stated."

8. The birth certificate statute, W.Va.Code, 16-5-12(e), contains a legislative policy

Page 552

[180 W.Va. 81] not to identify the name of the father if the mother is not married, unless his written consent is obtained or paternity has been determined by a court of competent jurisdiction.

9. The Dead Man's Act, W.Va.Code, 57-3-1, states that no "party ... or interested person [who] derives any interest or title ... shall be examined as a witness in regard to any personal transaction or communication between such witness and a person [who] at the time of such examination [is] deceased...." It should be remembered, as our earlier cases have stated, that this statute was designed to alleviate the harsh common law rule that foreclosed any witness from testifying if he had an interest in the suit.

10. To summarize the basic operation of the Dead Man's Act, W.Va.Code, 57-3-1, a concurrence of three general conditions must be met in order to bar the witness's testimony. First, the testimony must relate to a personal transaction with a deceased or insane person. Second, the witness must be a party to the suit or interested in its event or outcome. Third, the testimony must be against the deceased's personal representative, heir at law, or beneficiaries or the assignee or committee of an insane person.

11. At common law, family history or pedigree could be proved in one of two ways: by general reputation evidence or by specific extrajudicial statements from family members who were unavailable at trial.

12. The family history exception by reputation testimony is found in Rule 803(19) of the West Virginia Rules of Evidence. Rule 804(b)(4) relates to specific statements concerning a person's family relationship and has altered the common law rule to some degree.

A.L. Emch, Thomas Freeman, Jackson & Kelly, Charleston, for Avis S. Moore.

Benjamin N. Snyder, Charleston, for Goode.

Orton A. Jones, Hedges, Jones, Whittier & Hedges, Spencer, for Morris, et al.

MILLER, Justice:

Sarah Goode appeals from an order of the Circuit Court of Clay County granting a summary judgment against her in a proceeding to establish whether she is a beneficiary under the terms of the last will and testament of Custer Waldo Morris. On appeal, she asserts that the trial court erred in granting the summary judgment when the evidence was sufficient to allow the issue to go to a jury. We affirm the judgment of the circuit court.

I.

Custer Waldo Morris, a widower without issue, died on September 13, 1981. He was seventy-six years old. His last will and testament gave all his property, real and personal, in equal shares, to his surviving brothers and sisters. On September 14, 1981, Avis S. Moore, the executrix of the will and the County Clerk of Clay County, listed as the beneficiaries Harry Morris, Goldie I. Douglas, Merle Rogers, Hallie Talley, and Ruie Robertson. They are the surviving brother and sisters of Mr. Morris, born to Isaac N. Morris in lawful wedlock.

Approximately one year later, Sarah Goode claimed to be a half-blood sister of the decedent and entitled to share in his estate. She alleged that she had been born out of wedlock to the late Isaac N. Morris, the father of Custer Waldo Morris. Ms. Moore, as executrix, instituted this action for a determination of the beneficiaries under the will. Sarah Goode filed a counterclaim against Ms. Moore and cross-claimed. The codefendants are the listed beneficiaries (hereinafter referred to as "beneficiaries") who were acknowledged to be the real parties in interest. Depositions were taken and various documents produced by the parties.

In October, 1983, the parties submitted stipulations and exhibits to the court and requested a preliminary determination of two legal issues: (1) who has the burden of going forward with the evidence and the burden of proof with respect to the paternity of Sarah Goode, and (2) what is the standard of proof with respect to that issue.

Page 553

[180 W.Va. 82] A third issue was whether the relevant and admissible evidence as represented by the stipulations, including the depositions, would be sufficient to prove that Sarah Goode is the daughter of Isaac N. Morris.

The court after due consideration entered an order on June 27, 1984, that Sarah Goode had the burden of proof with respect to her paternity, that she must establish it by clear and convincing evidence, and that the relevant and admissible evidence submitted to the court would not be sufficient as a matter of law to establish paternity.

On the day this case was called for trial, May 6, 1985, counsel for Sarah Goode announced that she had no additional evidence. The beneficiaries moved the court for summary judgment upon all the pleadings, papers, deposed testimony, stipulations, and affidavits that had been filed in the action. The court granted the summary judgment, holding that Ms. Goode was not a sibling of Custer Waldo Morris and, therefore, was not a member of the class taking under his last will and testament.

II.

Despite the appellant's assertion that the circuit court should not have granted summary judgment, we do not view this case as one decided on that basis. It is clear that on the day of trial the appellant had concluded that all of the relevant evidence had been developed through discovery and evidentiary depositions, documents, and a factual stipulation. The appellant elected to submit the matter to the court for a final decision. This decision was taken with full knowledge of the court's preliminary ruling of June 27, 1974.

Viewing the record as a whole, it is clear that the parties submitted the case to the judge to decide the matter without a jury, as authorized by Rule 52(a) of the West Virginia Rules of Civil Procedure. Under this rule when the court makes its findings of fact and conclusions of law, as was done here, the judgment is given the same weight as a jury verdict. Nationwide Mut. Ins. Co. v. Conley, 156 W.Va. 391, 194 S.E.2d 170 (1972). The weight accorded to such fact findings on appeal is succinctly stated in Syllabus Point 1 of McDaniel v. Romano, 155 W.Va. 875, 190 S.E.2d 8 (1972):

"Findings of fact by a trial court without a jury will not be set aside unless they are clearly wrong."

Thus, we reject the appellant's argument that summary judgment rules apply to this case. Consequently, we proceed to review the various rulings made by the trial court to determine if they were clearly wrong.

III.

As the parties have framed the case, Ms. Goode's paternity is determinative of all the issues between the parties. Custer Waldo Morris, the testator, left a will in which the beneficiaries were his brother and sisters. 1

Ms. Goode claims as a child born out of wedlock. In Adkins v. McEldowney, 167 W.Va. 469, 280 S.E.2d 231 (1981), we extended such a person's right to inherit from his natural father by establishing an equal protection component to W.Va.Code, 42-1-5, 2 stating in Syllabus Point 3:

Page 554

[180 W.Va. 83] "Our legislature has manifested its intent to abrogate common law prohibitions against inheritance by [children born out of wedlock], and has given them rights of inheritance from and through their mothers. This, however, creates an impermissible discrimination that we, applying the doctrine of neutral extension, must remedy by requiring that Code, 42-1-5 be applied to permit [children born out of wedlock] to inherit from both...

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19 practice notes
  • Cross v. State Farm Mut. Auto. Ins. Co., No. CC995
    • United States
    • Supreme Court of West Virginia
    • December 6, 1989
    ...508 (1912). For example, "the testimony must be against the deceased's personal representative[.]" Syl. pt. 10, in part, Moore v. Goode, 180 W.Va. 78 , 375 S.E.2d 549 (1988). Accord, syl. pt. 2, Wimer v. Hinkle, 180 W.Va. 660 , 379 S.E.2d 383 (1989). The term "against," as used in the Dead ......
  • State Farm Fire v. Prinz, No. 11–1265.
    • United States
    • Supreme Court of West Virginia
    • May 21, 2013
    ...561 n. 6,citing Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 2.2(D)(1) at 40–41 (2nd ed. 1986); Moore v. Goode, 180 W.Va. 78, 89, 375 S.E.2d 549, 560 (1988); Miami Coal Co., Inc. v. Hudson, 175 W.Va. 153, 158–59, 332 S.E.2d 114, 119 (1985).Id. at 60–61, 468 S.E.2d ......
  • Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc., No. 18773
    • United States
    • Supreme Court of West Virginia
    • February 22, 1990
    ...representative, heir at law, or beneficiaries or the assignee or committee of an insane person." Syllabus Point 10, Moore v. Goode, 180 W.Va. 78, 375 S.E.2d 549 14. Statements made by an agent or employee within the scope of his agency or employment and during the existence of the agency or......
  • Wimer v. Hinkle, No. 18258
    • United States
    • Supreme Court of West Virginia
    • March 13, 1989
    ...representative, heir at law, or beneficiaries or the assignee or committee of an insane person." Syllabus Point 10, Moore v. Goode, 180 W.Va. 78, 375 S.E.2d 549 3. The test as to whether a witness is an interested party within the meaning of W.Va.Code, 57-3-1, is not whether he or she may b......
  • Request a trial to view additional results
19 cases
  • Cross v. State Farm Mut. Auto. Ins. Co., No. CC995
    • United States
    • Supreme Court of West Virginia
    • December 6, 1989
    ...508 (1912). For example, "the testimony must be against the deceased's personal representative[.]" Syl. pt. 10, in part, Moore v. Goode, 180 W.Va. 78 , 375 S.E.2d 549 (1988). Accord, syl. pt. 2, Wimer v. Hinkle, 180 W.Va. 660 , 379 S.E.2d 383 (1989). The term "against," as used in the Dead ......
  • State Farm Fire v. Prinz, No. 11–1265.
    • United States
    • Supreme Court of West Virginia
    • May 21, 2013
    ...561 n. 6,citing Franklin D. Cleckley, Handbook on Evidence for West Virginia Lawyers § 2.2(D)(1) at 40–41 (2nd ed. 1986); Moore v. Goode, 180 W.Va. 78, 89, 375 S.E.2d 549, 560 (1988); Miami Coal Co., Inc. v. Hudson, 175 W.Va. 153, 158–59, 332 S.E.2d 114, 119 (1985).Id. at 60–61, 468 S.E.2d ......
  • Board of Educ. of McDowell County v. Zando, Martin & Milstead, Inc., No. 18773
    • United States
    • Supreme Court of West Virginia
    • February 22, 1990
    ...representative, heir at law, or beneficiaries or the assignee or committee of an insane person." Syllabus Point 10, Moore v. Goode, 180 W.Va. 78, 375 S.E.2d 549 14. Statements made by an agent or employee within the scope of his agency or employment and during the existence of the agency or......
  • Wimer v. Hinkle, No. 18258
    • United States
    • Supreme Court of West Virginia
    • March 13, 1989
    ...representative, heir at law, or beneficiaries or the assignee or committee of an insane person." Syllabus Point 10, Moore v. Goode, 180 W.Va. 78, 375 S.E.2d 549 3. The test as to whether a witness is an interested party within the meaning of W.Va.Code, 57-3-1, is not whether he or she may b......
  • Request a trial to view additional results

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