Sayre v. Whetherholt S.

Decision Date26 April 1921
Docket NumberNo. 4167.,4167.
PartiesT. J. Sayre v. Nancy Whetherholt et als.
CourtWest Virginia Supreme Court
1. Executors and Administrators-Bill to Determine Rights to

Fund Deposited to Credit of Heirs Cognizable in Equity.

A bill by an administrator to obtain an adjudication of bis right to a fund deposited in a bank to the credit of two of the heirs of his intestate, on the ground that the money so deposited belonged to the estate, filed against one of such heirs and the surviving husband and administrator of the other, sets forth a cause of action cognizable in equity. (p. 545).

2. Same-In Bill to Determine Right to Deposits to Credit of De-

ceased Heir, Other Demands Held Properly Included to Avoid Multiplicity of Suits.

On the ground of avoidance of multiplicity of suits, it is proper to include in such a bill demands against such husband and administrator, for other sums of money alleged to be parts of such estate and the right to which is dependent upon substantially the same evidence as that determining the right to such deposit. (p. 545).

3. Witnesses-Heir May Testify Against Administrator of An-

other Heir in Suit by Ancestor's Administrator to Determine

Right to Deposit to Credit of Both Heirs.

In such case, the survivor of the two heirs in whose names such deposit was made is competent to testify against the administrator of the other, that his intestate took into her possession and control all of the money and other personal property of the ancestor and caused the deposit to be made and died without having accounted for the other money and property. (p. 545).

4. Executors and Administrators-In Determining Right to De-

posit, Deceased Heir Treated Executrix de son Tort.

Under such circumstances, the deceased heir is treated as having been, at the time of her death, executrix de son tort of her father's estate, and the personal transactions and communications between her and the surviving heir, respecting the estate, as standing upon no higher ground than they would have occupied if she had taken possession of the property, as a duly appointed and qualified administratrix, and, on her death, her husband had been appointed administrator de bonis non of the estate of her father. (p. 546).

5. Witnesses-Statutes Excluding Witnesses from Relief from

Disability on Ground of Interest Strictly Construed.

The exception in sec. 23 of ch. 130 of the Code, excluding witnesses from the relief from disability on the ground of interest given by that section, under certain specified conditions and circumstances, is strictly construed, and does not preclude the testimony of any witness that does not clearly come within its terms. (p. 546).

Appeal from Circuit Court, Jackson County.

Suit by T. J. Sayre, administrator of the estate of Charles Duff, deceased, against Nancy Whetherholt, William F. Ray, administrator of the estate of Margaret E. Duff, deceased, and others. Decree for plaintiff, and defendant Ray appeals.

Modified and affirmed.

J. L. Wolfe, for appellant. T. J. Sayre, for appellees.

Poffenbarger, Judge:

Propriety of the forum resorted to for the relief obtained and admissibility of the evidence upon which award thereof is predicated are the principle matters involved in this appeal. In resistance of the claim of equity jurisdiction, the appellant urges adequacy of the legal remedy. In view of the interests and relations of witnesses upon whose unsupported testimony the decree rests in large measure, he denies their competency and the admissibility of their evidence.

Plaintiff is the administrator of the estate of Charles Duff, deceased, and the defendants are a daughter of said Duff and the surviving husband and administrator of another daughter, in his own right and as administrator. The objects of the suit are adjudication of right in the plaintiff, as administrator, to a fund of $450.00, deposited in the Kanawha National Bank of Charleston, W. Va., to the credit of the two daughters, before the death of the one last mentioned, on the theory that it is a part of the estate of his intestate, and to $401.00 of other money of the estate and the value of certain goods and chattels of said estate, alleged to have passed into the hands of the deceased daughter before her demise. The living daughter is Nancy Whetherholt and the deceased one was Margaret E. Duff, until she married Wm. P. Ray, February 5, 1918, over two years after the death of her father, which occurred in November, 1915.

Ray filed his joint and separate demurrer and answer to the bill, in his individual and representative capacities, but adduced no evidence. Nancy Whetherholt, favoring recovery by the plaintiff and disclaiming title to the deposit in bank, in favor of her father's estate, allowed the bill to be taken for confessed as to her, and she and her husband testified as witnesses for the plaintiff.

For many years before his death and at the time thereof, Charles Duff kept $460.00 in gold, 23 twenty dollar gold coins, buried in a flower-pit on his premises, and, at some time prior to his death, advised Mrs. Whetherholt of its location. After his death her husband and Margaret E. Duff unearthed it, and the former deposited $450.00 of it, as aforesaid, and expended the remaining $10.00 for grass-seed purchased for the latter and sowed on the farm. This was done upon the assumption that the two daughters were entitled to it. From November, 1915, until April, 1916, this money remained where its owner had placed it, Disturbance thereof was an incident of removal of the then unmarried daughter to the home of her sister.

Besides this money, the intestate had $280.00 concealed in his house in an old piece of carpet and $121.00 in a pocket of his clothes. On his death the unmarried daughter took possession of it, She loaned $250.00 of it to one Edward Clifford, who repaid to her $100.00, which was deposited to her credit with the Elk Banking Company. Sam Duff assumed payment of the remaining $150.00 of this loan, and later paid it, with $9.00 interest, to the defendant, Wm. F. Ray, administrator. Mrs. Whetherholt and her husband both testified that the unmarried daughter took charge of all the money found in the house, and the former swore positively to the amount of it, saying she had counted it. The goods and chattels consisted of household goods, two mowing machines, a wheat drill and other articles of small value.

After the marriage of Margaret E. Duff, February 5, 1918, she seems to have resided with her husband in a home he owned, and some of the goods and chattels seem to have been taken to that place. She died in August, 1918, in the...

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8 cases
  • Cross v. State Farm Mut. Auto. Ins. Co.
    • United States
    • West Virginia Supreme Court
    • December 6, 1989
    ...admissible unless clearly excluded. Syl. pt. 1, Keller v. Hartman, 175 W.Va. 418, 333 S.E.2d 89 (1985); syl. pt. 5, Sayre v. Whetherholt, 88 W.Va. 542, 107 S.E. 293 (1921). 6 Based upon this principle of strict construction of the exclusionary aspect of W.Va.Code, 57-3-1 [1937], this Court ......
  • Kuhn v. Shreeve
    • United States
    • West Virginia Supreme Court
    • December 10, 1955
    ...20 S.E. 927; Charleston National Bank v. Hulme, 117 W.Va. 790, 794, 188 S.E. 225. Such exceptions are applied strictly. Sayre v. Whetherholt, 88 W.Va. 542, 107 S.E. 293. Walter Kuhn is not a party in interest, but he is the husband of Anna Kuhn. Does that fact render him incompetent to test......
  • Morgan v. Allianz Life Ins. Co. of North America
    • United States
    • U.S. District Court — Southern District of West Virginia
    • August 29, 1997
    ...387 S.E.2d 556, 561 (1989) (citing syl. pt. 1, Keller v. Hartman, 175 W.Va. 418, 333 S.E.2d 89 (1985); syl. pt. 5, Sayre v. Whetherholt, 88 W.Va. 542, 107 S.E. 293 (1921)) (stating Statute is to be strictly construed and testimony in question is admissible unless clearly excluded). With thi......
  • Keller v. Hartman
    • United States
    • West Virginia Supreme Court
    • July 11, 1985
    ...construed, and does not preclude the testimony of any witness that does not clearly come within its terms." Syl. pt. 5, Sayre v. Whetherholt, 88 W.Va. 542, 543, 107 S.E. 293 (1921). 2. "The open, continuous and uninterrupted use of a road over the land of another, under bona fide claim of r......
  • Request a trial to view additional results

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