Sperry v. Clark
| Decision Date | 25 February 1941 |
| Docket Number | 9099. |
| Parties | SPERRY v. CLARK. |
| Court | West Virginia Supreme Court |
Charles B. Johnson and Johnson & Johnson all of Clarksburg, for appellant.
Powell & Clifford and Sperry & Snider, all of Clarksburg for appellee.
This is a suit instituted by Melvin G. Sperry, executor of the last will and testament of Charles L. Patton, deceased, against Harles L. Clark, seeking to set up and establish as valid evidence of indebtedness, alleged to be due from Clark, a note of $5,000, dated the 5th day of September, 1936, payable to Patton, with which there was deposited as collateral security fifty shares of the preferred stock of the Empire National Bank of Clarksburg, and seeking a decree against Clark for the amount of said note with interest. From a decree in favor of the plaintiff, the defendant prosecutes this appeal.
The execution of the note in question is not disputed, nor is it disputed that Patton advanced to Clark the sum of $5,000 with which to purchase shares of stock in the Empire National Bank. It is contended, however, that the admission by Clark of the execution of this note, coupled as it is with his claim that it was afterwards cancelled, and a note for the same amount substituted and made payable to the wife of Clark, should be taken together, and that there is therefore, no admission or proof of the debt. We do not think this position can be maintained. The evidence is clear, independent of the pleadings filed by the defendant, or his testimony on that point, that the money was advanced to him by Patton, and a note executed. The testimony of Cecil B. Highland establishes this fact. Moreover, the asserted incompetency of the defendant to testify as to personal transactions with Patton applies to testimony against his estate, and not to statements against interest. Crothers' Adm'r v. Crothers, 40 W.Va. 169, 20 S.E. 927.
The suit alleges the execution of the note on the 5th day of September, 1936, to become payable on February 1, 1937. There is no allegation that there was any renewal of the note, although it appears that the defendant paid the interest due at its maturity on February 1, 1937, and on or about the 2nd day of August, 1937, made another payment of interest, and offered to renew the note. Whether or not two notes were executed instead of one is important only in view of the fact that there is a dispute as to the form of the note. It appears from the testimony of Highland that the note executed was in typewritten form, while the testimony of Amos G. Skidmore, who claims to have seen the note in September, 1937, the night before Patton was taken to a hospital during his last illness, indicates that it was a collateral note drawn on a form used by the Empire National Bank.
Amos G. Skidmore, to whom a bequest was made by Patton, and which bequest has been paid, states that on the night before Patton was removed to the hospital, he showed him certain papers which he kept in a strong box in a closet in his home, and that one of the papers shown him was a note of $5,000, executed by Harles L. Clark, which we are asked to believe is the note upon which plaintiff seeks recovery in this cause. There was attached to this note a certificate for shares of stock in the Empire National Bank. The testimony of Skidmore as to what occurred on that occasion is confined to what he saw, and does not amount to evidence of anything Patton may have said. The next morning Patton was taken to a hospital, and at some time later, either on the same day or within a day or two, which is not important, Sallie Zinn, a niece of Patton, accompanied by the defendant, went to Patton's residence, and, having a key to his closet in her possession, removed certain papers from the strong box mentioned above. The defendant waited outside. She admits that she removed therefrom a note of $700, payable to Patton, executed by another niece, Beulah Patton Clark, wife of the defendant, which note she says she delivered to Mrs. Clark, and which note Mrs. Clark destroyed. It is significant that the record shows that Sallie Zinn secured these papers at the instance of her sister, Beulah Patton Clark, and without any direct authority therefor on the part of Patton, although she states that she afterwards told Patton what she had done, and that he approved her conduct. Sallie Zinn removed these papers to the home of the defendant, where she resided at the time, and the fact that she did so became known, with the result that she was asked to turn them over to the plaintiff herein. She declined to do so, but did execute a paper listing the papers in her possession, among them being a note of $5,000, dated August 2, 1937, executed by Harles L. Clark, and payable to Beulah Patton Clark, his wife. It is contended by the defendant that this note to his wife was intended to take the place of the note he had theretofore executed to Patton. The claim of the plaintiff is, in effect, that this note was fraudulently substituted for the note which the defendant executed, payable to Patton, and which the witness Skidmore says he saw. The shares of stock which were filed with the original note were attached to the substituted note.
The contention of the defendant is that when he communicated with Patton in August, 1937, for the purpose of paying accumulated interest and to effect a renewal of the note, Patton asked that the note be changed, and that the note to his wife, Beulah Patton Clark, was then executed and delivered to Patton. The defendant testifies to this transaction, and there is some testimony on the part of his wife which tends, in some degree, to corroborate him, and has other bearings upon the case, and which involves personal transactions and conversations with the deceased. There was objection to this evidence under Code, 57-3-1, which objection was overruled, and the testimony of both Clark and his wife was considered by the trial court in rendering its decision. We think this was error. Both Clark and his wife were incompetent to testify as to any personal transaction had by either of them with the decedent Patton. But for the testimony of Skidmore and a clause in Patton's will hereinafter to be mentioned, there would appear to be no reasonable grounds for controversy on this point. Paxton v. Paxton, 38 W.Va. 616, 18 S.E. 765; Crothers' Adm'r v. Crothers, 40 W.Va. 169, 20 S.E. 927; Trowbridge v. Stone's Adm'r, 42 W.Va. 454, 26 S.E. 363; Freeman v. Freeman, 71 W.Va. 303, 76 S.E. 657; Barrett v. Andrew, Executrix, 81 W.Va. 283, 94 S.E. 144; Curtis v. Curtis, 85 W.Va. 37, 100 S.E. 856, 8 A.L.R. 1091; Sattes v. Sattes, 113 W.Va. 708, 169 S.E. 392; Newhouse v. England, 118 W.Va. 649, 191 S.E. 525. Many of these cases raise the bar against the testimony of husband and wife where incompetency of either exists under the statute.
But it is contended that the testimony of Clark and his wife is made admissible because plaintiff introduced as a witness in his behalf, Amos G. Skidmore, to whom a bequest of $1,500 had been made by Patton in his will. This bequest has been paid, and a reasonable application of the statute would seem to require a holding that he was not an interested party such as is within the contemplation of that section of the statute which provides that the prohibition against testimony as to personal transactions with a decedent shall not extend to any transaction or communication as to which an executor, administrator, heir-at-law, next of kin, assignee, legatee, devisee, survivor or committee shall be examined on his own behalf.
In Crothers' Adm'r v. Crothers, supra, it was held that "By common...
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