Ogdin v. First Nat. Bank

• Decision Date: 17 May 1927
• Docket Number: 5829.
• Parties: OGDIN v. FIRST NAT. BANK OF ST. MARYS et al.
• Court: West Virginia Supreme Court

138 S.E. 376

103 W.Va. 665

OGDIN v. FIRST NAT. BANK OF ST. MARYS et al.

No. 5829.

Supreme Court of Appeals of West Virginia.

May 17, 1927

Submitted October 26, 1926.

Syllabus by the Court.

Where a promissory note for $45,000 is asserted by a niece against the estate of her aunt, the consideration therefor being for alleged services rendered by the former to the latter in her declining years, the burden of proof rests upon the niece to establish that reasonable services were rendered upon an express or implied promise of payment.

Services usually and commonly rendered by one standing in close blood relationship to the person to whom they are rendered are generally presumed to be gratuitous, and to rebut that presumption the services must be shown to have been of such a nature and rendered under such circumstances as would evince an intention of payment at the time rendered, in order to constitute consideration for a note subsequently executed.

Where the evidence of a fact which controls the issue is uncertain vague and conflicting, the finding of the lower court thereon will not be disturbed unless clearly wrong.

Additional Syllabus by Editorial Staff.

Testimony of niece, presenting note executed by deceased aunt against aunt's estate, would have been incompetent under Code, c 130, § 23, but opposing parties by making niece their witness and proving by her lack of consideration for note waived such disqualification, made her testimony competent, and were bound by it.

Appeal from Circuit Court, Pleasants County.

Suit by Oran C. Ogdin, administrator of the estate of Emma W. Standiford, deceased, against the First National Bank of St. Marys and others, to settle his accounts as administrator and for other relief. From a decree based on a finding that a note presented against the estate by defendant Lucile B. Wentz was without consideration and delivered subsequent to the death of the decedent and was a gift, the last-named defendant appeals. Affirmed.

G. D. Smith and Frank J. Barron, both of St. Marys, for appellant.

C. P. Craig, of St. Marys, for appellee Ogdin.

Russell, Hiteshew & Adams, of Parkersburg, for appellees Wilson and others.

LIVELY J.

Plaintiff, administrator of the estate of Emma W. Standiford, deceased, instituted this chancery suit to settle his accounts as administrator, to determine what amount was due the decedent's estate as residuary legatee of her deceased husband, B. F. Standiford, and to convene the creditors of Mrs. Standiford's estate and ascertain their debts and order of priority. In her answer to plaintiff's bill, defendant Lucile B. Wentz (appellant here) set up a $45,000 note of plaintiff's decedent, payable to appellant, as a debt against the estate. The commissioner to whom the cause was referred made no finding on appellant's claim, but the lower court from the pleadings and the evidence taken by the commissioner found that the note was without consideration, was delivered subsequent to the death of Emma W. Standiford, and was a gift, by reason of which it was not enforceable. This appeal followed.

The First National Bank of St. Marys, executor of the estate of Emma W. Standiford's deceased husband, B. F. Standiford (who had died less than a year before his wife), also brought an action to have the debts against its decedent's estate determined. That cause and the instant one were referred to the same commissioner in chancery, and it was agreed that in so far as applicable the evidence taken in each cause could be considered in the other.

The issue on the note in question was raised by the answer of appellant Lucile B. Wentz, and the replications filed thereto by plaintiff administrator and by certain heirs of the decedent, Emma Standiford, in which replications it was averred that the note was without consideration and that it was unenforceable because a gift. The note is as follows:

"No. _____. Due _____.

San Antonio, Tex. March 9, 1925.

On demand after date I promise to pay to the order of Lucile B. Wentz forty-five thousand dollars $45,000/00 at the First National Bank of St. Marys, W.Va. Value received with costs of collection plus 10 per cent. of principal and interest as attorney's fees in case payment shall not be made at maturity.

Emma W. Standiford

P. O. Box 1292 San Antonio Texas."

When the commissioner in chancery sat to hear evidence in this cause, appellant introduced the note in evidence and stated that she had received it in due course, and that she had not received payment. The signature of the maker was duly proved. Upon cross-examination by counsel for certain heirs of the decedent, she testified that the body of the note was in the handwriting of her son; that it was delivered to her by her husband and son; that, "the object of that note, as near as I can explain it, was Auntie's desire to make me her sole heir"; that it would be a gift in a way, "and in a way it would be earned"; that the note was delivered to her in West Virginia. On redirect examination, when asked by her counsel to tell all the circumstances connected with the delivery of the note to her husband and son, she replied:

"Well; all I know about that transaction is what my husband and son informed me as to their understanding of the agreement."

She was not permitted to give this information. Appellant further said that the first she knew of the existence of the note was "early in the summer." (Her aunt died on May 20, 1925.) On recross-examination, she said that the note did not come into her possession until the latter part of October.

At a later date, appellant was recalled to the stand, and in answer to questions propounded by her counsel, testified that when she had said no consideration had been given for the note, she had understood "consideration" to mean either money or property transferred; that the consideration for the making of this note by her Aunt Emma was "services I had rendered them (meaning her aunt and uncle) over a period of years," and "love and affection she held for my family and myself." She further said that her aunt had within the past few years spent three winters with her in Texas, staying from three to six months during each of these visits; that her aunt made no payments for the time she spent in appellant's Texas home. Appellant later stated, in proving a check for $150 against the decedent's estate, that this money was given in part payment of the aunt's expenses, because on her last visit she had agreed to share expenses with appellant. Her uncle had also accompanied his wife to Texas on two of these visits. In a letter written by appellant to one of her relatives, in which she sought to have the relative renounce whatever rights she may have had in the decedent aunt's estate in favor of appellant (which letter was introduced in evidence by appellees), the statement is made that for a number of years of appellant's married life her aunt and uncle spent from three to six months each year in her home; that they paid no board, "and it was never thought of, as they always said my children and I were to have all they had after the legacies were paid." In this letter, written on June 9, 1925, she made no mention of the $45,000 note.

It appears from the evidence that when appellant was six years of age, her mother died, and she went to live with the Standifords. Her father furnished her clothing, books, and spending money from that time until he died, when she was 13 years of age. The Standifords provided her support, schooling, and maintenance from the date of her father's death until she reached the age of 17, when she was married. Appellant was of the opinion that her services rendered during this period offset any benefit derived by her from their support and maintenance. In the early part of her married life, appellant's husband attended a medical college in Louisville, Ky. and during the four-year course, appellant spent five months of each of those years with the Standifords. She says she paid her expenses when so living with them, although she admitted that she paid no room rent during that time.

Appellant and her uncle (Mr. Standiford) had engaged in a number of real estate deals extending over a long period of time. Several deals were made in West Virginia, and in one transaction in Texas she and her uncle purchased 20 acres of land jointly. He made the initial payment of $1,000, but, not desiring to complete the deal, deeded her his interest therein the year of his death, after she had come to nurse him during his last illness. Appellant has now paid all of the purchase price of $8,000, with the exception of $1,000. She said the consideration for the $1,000 advanced by her uncle was "services" rendered.

Three notes signed by appellant, for sums aggregating $1,950, and one signed by her husband for $1,000, were found among the papers of her deceased uncle. They were appraised as assets of his estate, but appellant in testifying before the commissioner said these notes had been delivered to her by her uncle, although they were found among papers part of which belonged to him and part to her. Her recollection of payment of these notes was, to say the least, rather hazy. Appellant objected to the commissioner considering them, because, first, they were her property, and, second, they were barred by the statute of limitations.

Two notes, one for $1,000, signed by Emma W. Standiford and Frank S. Wentz (son of appellant), dated February 23, 1925, payable to the order of the First National Bank of St. Marys, and upon which Frank Wentz received the money, and one note for $500, signed by Emma W. Standiford and appellant, payable to the order of the First National Bank of St. Marys, dated January 30, 1925, and upon which appel...