Murphy's Estate, In re

• Decision Date: 26 March 1955
• Docket Number: No. 10686,10686
• Citation: 140 W.Va. 539,85 S.E.2d 836
• Court: West Virginia Supreme Court
• Parties: In re ESTATE of Michael G. MURPHY, Deceased.

Page 836

85 S.E.2d 836

140 W.Va. 539

In re ESTATE of Michael G. MURPHY, Deceased.

No. 10686.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 18, 1955.

Decided March 1, 1955.

Rehearing Denied March 26, 1955.

Syllabus by the Court

1. Upon writ of error to a circuit court from an order of a county court, entered upon a hearing on a report of a commissioner of accounts, the record before the circuit court must be identified as having been the record before the county court upon which the order complained of was based.

2. An exception to a report of a commissioner of accounts must point out with reasonable certainty the basis or ground of the exception.

3. 'To establish a contract, express or implied, to pay compensation for personal services rendered a deceased person in his lifetime, as against his estate, the evidence and circumstances in support thereof must be clear and convincing.' Point 2, Syllabus, Furman v. Hunt, 135 W.Va. 716, 65 S.E.2d 1.

4. Where there is a valid agreement whereby a promisor binds himself to convey unto the promisee a certain tract of land, for services to be rendered by the promisee to the promisor, during the lifetime of the promisor, and the promisor dies before making the conveyance, and the promisee has performed his part of the agreement, the measure of damages to which the promisee would be entitled would be the market value of the tract of land at the time of the death of the promissor.

5. 'If an employer promise to make compensation for services at the time of his death, by will or otherwise, the statute of limitations does not begin to run until the death of such person.' Point 4, Syllabus, Cann v. Cann's Heirs, 45 W.Va. 563, 31 S.E. 923.

Minter L. Wilson, Clarence Roby, Morgantown, for plaintiff in error.

Geo. R. Farmer, Morgantown, for defendant in error.

GIVEN, Judge.

Questions involved in this proceeding relate to claims filed by James L. Herod against the estate of Michael G. Murphy, who died intestate. Three claims were filed by Herod: One for $1,200 for money advanced by him to Murphy; one for $2,250 for pasture and hay; and one for $44,400 'for work, labor and managerial services rendered and performed by the claimant to and for the said Michael G. Murphy during his lifetime, for the period of three hundred months immediately preceding the date of his death, at the rate of one hundred dollars per month for the period of the first one hundred fifty-six months, and at the rate of two hundred dollars per month for the period of the last one hundred forty-four months'. Only the last mentioned claim is here involved, the others having been abandoned.

The commissioner of accounts to whom the estate was referred found that claimant had established an 'express contract' between claimant and Murphy 'whereby the decedent promised Herod that if he would stay on the farm and work for the decedent that said Herod 'was to have' or 'would get' the home farm. Apparently Herod and the decedent both understood this agreement was to be carried out by will of decedent or by conveyance effective at the death of decedent'. The commissioner of accounts further found that the contract relating to the home farm related only to the surface of the home farm, appraised at $2,150, and allowed claimant that sum only. The appraisal of the estate shows the value of the surface and minerals of the home farm to be $30,391.50. The entire estate was appraised at $88,521.69. The county court confirmed the report of the commissioner of accounts. Upon writ of error to the circuit court, that court sustained the holding of the county court, in so far as it related to the contract to convey the home farm, but found further that claimant had established that Murphy was to pay claimant further consideration for services rendered, and that the statute of limitations, which had been timely pleaded, barred any recovery as to such further consideration except as to the five year period immediately prior to the death of decedent, and found that the reasonable value of such services for that period was $7,175. Judgment was entered by the circuit court in favor of claimant for $9,325, the reasonable value of such services for the five year period, plus the appraised value of the surface of the home farm. This Court granted claimant a writ of error to the judgment of the circuit court.

The first problem facing the Court is to determine whether the record of the proceeding before the county court was sufficiently identified before the circuit court. The record before the county court was not included in any formal bill of exceptions. Neither is there found in the record before this Court any certificate of the clerk of the county court, or of the commissioners of the county court, relating to the record. The order of the circuit court granting the writ of error from the order of the county court directed 'that the Clerk of the County Court * * * do transmit the record pertaining to the claims of the petitioner, James L. Herod, to this Court * * *'.

Code, 44-2-19, accords unto a person aggrieved by an order of the county court made on a hearing on a report of a commissioner of accounts, the right to present unto the circuit court a petition for 'An appeal from the decision of such county court on such report and exceptions and on the supplemental report and exceptions, if there be such supplemental report, may, without any formal bill of exceptions, be taken to the circuit court of the county. The appeal shall be tried and heard in the circuit court, or before the judge thereof in vacation, on the record made before the commissioner and the county court.' The procedure provided for review by a circuit court of such an order of a county court is by writ of error, not by appeal. Ballouz v. Hart, 96 W.Va. 580, 123 S.E. 402. Further provisions relating to such a review are provided by Article 3 of Chapter 58 of the Code. See Miller v. Miller, 117 W.Va. 138, 184 S.E. 246. Section 3 of that article permits the use of a formal bill of exceptions, in certain instances, at least, while Section 4 of that article provides that the petition to the circuit court for a writ of error 'shall be accompanied by the original record of the proceeding in lieu of a transcript thereof'.

In Re Estate of Durham, 119 W.Va. 1, 191 S.E. 847, this Court held: 'Upon writ of error from a circuit court to the judgment of a county court provided for by Code 44-2-19 and Code 58-3-1, according to the method prescribed in Code 58-3-4, the record must be authenticated by the certificate of the clerk of the county court showing that such record includes all of the matter upon which the county court acted in deciding the questions presented for review, or that it includes all of the papers in the case that were before the county court. Otherwise it is not error in such a proceeding to dismiss a writ of error which has been awarded by the circuit court on the ground the record required by Code 58-3-4, did not accompany the petition for a writ of error as required by that section.' See Ballouz v. Hart, supra; Barrett v. McAllister, 35 W.Va. 103, 12 S.E. 1106; Rosset v. Greer, 3 W.Va. 1.

These authorities seem to make it clear that notwithstanding no formal bill of exceptions, or certificate in lieu thereof, is required in such cases, the record before the county court upon which the order was based must be authenticated or identified in some manner so as to make it reasonably certain that the record before the circuit court was the same record which was before the county court. The usual way of identifying the record in such a case is by certificate of the clerk of the county court, but the claimant insists that a stipulation signed by counsel for the respective parties, found in the record before this Court, sufficiently identifies the record before the circuit court as being the record which was before the county court. The pertinent part of the stipulation reads: 'It is agreed and stipulated * * * that the following portions of the record in the above case in which a writ of error was granted by the Supreme Court of Appeals of West Virginia on June 7, 1954, are all of the pertinent portions of said records necessary to a determination of the issues to be determined upon said writ of error and are all of the portions of said record which are to be printed * * *'.

The Court is of the view that there is contained in the stipulation language which constitutes an agreement of the parties to the effect that the record before the circuit court was sufficiently identified as being the record which was before the county court. Had the record in the county court not been sufficiently identified, the record certified to this Court would not constitute 'all of the pertinent portions of said records necessary to a determination of the issues' before this Court. It is true, of course, that parties can not by agreement vest jurisdiction of a particular proceeding in a court. See Nolan v. Guardian Coal & Oil Co., 119 W.Va. 545, 194 S.E. 347; Yates v. Taylor County Court, 47 W.Va. 376, 35 S.E. 24. That, however,...