Silling v. Erwin

Decision Date25 April 1995
Docket NumberCiv. A. No. 2:94-0448.
PartiesCyrus E. SILLING, Jr., Plaintiff, v. Edna Marie Litton ERWIN, As Executor of the Estate of Willard H. Erwin, Jr., Deceased, et al., Defendants.
CourtU.S. District Court — Southern District of West Virginia

COPYRIGHT MATERIAL OMITTED

Christopher J. Winton, Mark W. Kelley, Payne, Loeb & Ray, Charleston, WV, Richard J. Miller, Jr., James Barriere, Couch, White, Brenner, Howard & Feigenbaum, Albany, NY, Josef A. Horter, Goodwin & Horter, Charleston, WV, for plaintiff Cyrus E. Silling, Jr.

Arden J. Curry, II, Pauley, Curry, Sturgeon & Vanderford, Charleston, WV, for defendant Edna Marie Litton Erwin, as Executor of Estate of Willard H. Erwin, Jr., deceased.

Neva G. Lusk, G. Thomas Battle, Spilman, Thomas & Battle, Charleston, WV, for defendant United Nat. Bank, as Executor of Estate of Cyrus E. Silling, Sr., deceased.

Raymond G. Dodson, Dodson, Riccardi & Lutz, Charleston, WV, for defendant Jane King.

MEMORANDUM OPINION AND ORDER

HADEN, Chief Judge.

Pending is Defendant Edna Marie Litton Erwin's Motion for Summary Judgment. Defendant Erwin asserts as a matter of law: 1) Plaintiff is incompetent to testify regarding transactions or communications with his deceased father; 2) Silling, Sr. had the requisite mental capacity to execute the codicil dated April 13, 1991; 3) the April 13, 1991 codicil was executed properly; 4) Plaintiff may not prevail on a claim based upon undue influence; 5) Plaintiff is estopped from contesting the validity of the April 13, 1991 codicil; 6) the contribution to the Shriners Hospital for Crippled Children was authorized and made at the request of Silling, Sr.; 7) Plaintiff's claims for fraudulent suppression of dividends may not be presented to the jury; 8) Plaintiff may not prevail on his claim Erwin improperly received a gift of ten thousand dollars ($10,000.00); and 9) Plaintiff may not recover on a claim regarding charges for accounting services by Erwin.

The parties have submitted memoranda in support of their respective positions and the matter is mature for adjudication. For the reasons that follow, the Court GRANTS the motion on all issues.

Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is proper only:

"If the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to summary judgment as a matter of law."

Fed.R.Civ.P. 56(c). A principal purpose of summary judgment is to isolate and dispose of meritless litigation. Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The moving party has the burden of initially showing the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). Once the moving party has met its initial burden, the burden shifts to the nonmoving party to "establish the existence of an element essential to that party's case and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. at 2552.

To discharge this burden, the nonmoving party cannot rely on its pleadings but instead must have evidence showing that there is a genuine issue for trial. Id. at 324, 106 S.Ct. at 2553. If there is a complete failure of proof concerning an essential element of the non-moving party's case there can be no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Id. at 322, 106 S.Ct. at 2552.

FACTUAL BACKGROUND

The undisputed facts are as follows. Cyrus E. Silling, Sr. ("Silling, Sr.") died at the age of ninety-three on June 6, 1993, a resident of Kanawha County, West Virginia. Silling, Sr. executed his Last Will and Testament on November 25, 1988 and three codicils dated April 13, 1991, June 12, 1992 and September 7, 1992.1 The will and the three codicils were admitted to probate by the County Commission of Kanawha County on June 9, 1993 supported by authenticating affidavits of witnesses.

By his will, Silling, Sr. appointed Willard H. Erwin, Jr. ("Erwin") and the United National Bank ("Bank") Co-Executors and provided should Erwin become unable to serve, the Bank should continue as sole Executor. The Co-Executors qualified to serve on June 9, 1993. Erwin died on May 21, 1994 and this action is maintained against his widow, Edna Marie Litton Erwin, as executrix of his estate and the Bank.

Erwin was an accountant, minority shareholder, president, and director of One Morris, Incorporated. He also handled the finances of Silling, Sr. and held a general power of attorney over him.

The will devises and bequeaths the residue of Silling, Sr.'s estate to the Plaintiff. The codicil dated April 13, 1991, bequeathed two hundred and forty-two (242) shares of capital stock of One Morris2, Incorporated to Erwin.

The Plaintiff has received partial distributions under Silling, Sr.'s Will of eighty thousand dollars ($80,000.00) in May 1994 and approximately nine hundred and twenty-eight thousand dollars ($928,000.00) in cash and securities in December 1994.

Silling, Sr. owned a controlling interest of fifty and one tenth percent (50.1%) of the shares in One Morris for many years prior to his death in 1993. In fact, at all times since 1950, he was the largest shareholder of One Morris. He was a director and an officer of One Morris at all times since the 1960's. One Morris did not declare a dividend in its forty-five year history. Plaintiff contends dividends should have been paid since 1986, when all remaining corporate debt was retired.

The Second Amended Complaint attacks, inter alia, the validity of the codicil on the grounds of alleged lack of testamentary capacity of Silling, Sr., the alleged lack of testamentary formalities, the alleged exercise by Erwin of undue influence over Silling, Sr., and the alleged tortious interference by Erwin with the rights of the Plaintiff as affected by the codicil. Plaintiff further alleges Erwin, acting as an officer and director of One Morris, Incorporated, fraudulently suppressed dividends of the corporation.

The Second Amended Complaint also alleges Erwin committed a breach of trust by virtue of his position as attorney-in-fact to Silling, Sr.: 1) when he allegedly made unauthorized gifts totalling seventy-five thousand dollars ($75,000.00)3 to Shriners Hospitals for Crippled Children; 2) when he allegedly made an unauthorized gift of ten thousand dollars ($10,000.00) to himself; and, 3) when he allegedly made unauthorized payments of compensation to himself totalling fifty-six thousand eight hundred dollars ($56,800.00) for services rendered.

By Memorandum Opinion and Order entered April 4, 1995, 881 F.Supp. 236, this Court granted Defendants One Morris, Incorporated, Frank T. Litton, Jr. and Forrest Morris summary judgment and dismissed them from this action with prejudice.

DISCUSSION

I.

PLAINTIFF'S COMPETENCE TO TESTIFY REGARDING TRANSACTIONS OR COMMUNICATIONS WITH HIS DECEASED FATHER

In West Virginia,

"No party to any action ... nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title by assignment or otherwise, 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, ... against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such person.... But this prohibition shall not extend to any transaction or communication as to which any such executor, administrator, heir at law, next of kin, assignee, legatee, devisee, survivor or committee shall be examined on his own behalf, nor as to which the testimony of such deceased person or lunatic shall be given in evidence."

W.Va.Code § 57-3-1 (1937). The term "personal transactions and communications" has been given a broad interpretation which includes every method whereby one person may derive impressions or information from the conduct, condition, or language of another. Kuhn v. Shreeve, 141 W.Va. 170, 89 S.E.2d 685 (1955); Miami Coal Co. v. Hudson, 175 W.Va. 153, 332 S.E.2d 114 (1985).

"It has oft been stated that the purpose of the Dead Man's Statute is to prevent an undue advantage on the part of a survivor over a decedent. F. Cleckley, Handbook on Evidence for West Virginia Lawyers 43 (1978); Note, "Reevaluation of the Dead Man's Statute," 69 W.Va.L.Rev. 327, 328 (1967). In such circumstances the decedent is unable to confront the survivor, give his version of the affair, and expose the possible omissions, mistakes or perhaps even outright falsehoods of the survivor."

Miami Coal, 332 S.E.2d at 119.

Furthermore, testimony has been excluded under the statute where interested children and heirs of a deceased insane person desired to testify they had observed and knew the mental and physical condition of the decedent. Trowbridge v. Stone's Administrator, 42 W.Va. 454, 26 S.E. 363 (1896). The Court there found the testimony incompetent because it involved transactions and communications of the insane decedent in which the witnesses were interested against him. Id.; see Patterson v. Martin, 33 W.Va. 494, 10 S.E. 817 (1890).

Individuals in the same position as the Plaintiff have been found incompetent to testify under this statute regarding any communications or transactions they had with the decedent. Mann v. Peck, 139 W.Va. 487, 80 S.E.2d 518 (1954) (decedent's brother barred from testifying); Kuhn v. Shreeve, 141 W.Va. 170, 89 S.E.2d 685 (1955) (aunt and first cousin barred from testifying).

The Court concludes the Plaintiff is barred from testifying concerning any conversations or transactions he had with Silling, Sr. including his impressions or information from the conduct, condition, or...

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