Stansbury v. Stansbury's Adm'rs

• Decision Date: 01 July 1882
• Citation: 20 W.Va. 23
• Court: West Virginia Supreme Court

20 W.Va. 23

Supreme Court of Appeals of West Virginia.

Submitted June 8, 1882

Decided July 1, 1882.

Stansbury v. Stansbury's Adm'rs. Writ of error to a judgment of the circuit court of the county of Brooke rendered on the 21st day of March, 1879, in an action in said court then pending, wherein Abraham II. Stansbury wasplaintiff and Nicholas Stansbury's administrators were defendants, allowed upon the petition of said defendants.

Hon. T. Melvin, judge of the first judicial circuit, rendered the judgment complained of.

Snyder, Judge, furnishes the following statement of the case:

This was an action of assumpsit brought December 15, 1877, in the circuit court of Brooke county by Abraham IT. Stansbury against the administrators of Nicholas Stansbury, deceased, to recover three thousand dollars for services. The declaration consists of the common counts in assumpsit. The defendants filed the pleas of non assumpsit and the statute of limitations, to which the plaintiff replied generally, and also filed a special replication to the plea of the statute of limitations. This replication is without any conclusion; and no rejoinder was filed thereto nor issue joined thereon. In September, 1878, the case was tried by a jury, and a verdict found for the plaintiff for one thousand six hundred and fifty seven dollars and fifty cents. The defendants moved the court to set aside said verdict and grant them a new trial, which motion the court at the next March term overruled and rendered judgment on the said verdict against the defendants personally and not as administrators.

During the trial the defendants took two several bills of exceptions, one of which contains all the facts proved by the plaintiff and also those proved by the defendants, and the other gives all the evidence heard on the trial. These bills show, that there was much conflict in the testimony given on the trial as to some of the facts in the case. It is sufficient here to state, that they show, that the plaintiff was the son of the defendant's testator; that he was born in May 1844, and from infancy to the death of his father in December, 1876, he made his home with and worked for his father on his farm in Brooke county, and received nothing for his services except his hoard, clothing and a very small amount ot pocket-money; that he and his brother Elisha had the active management of and did most of the work on the farm, and that neither of the other children of the testator did much work on the farm; and that the plaintiff was a good hand to work. The evidence of the value of his services was conflicting. Two of the witnesses stated, that his services were worth from twenty-five to thirty dollars per month with lost time and clothes; another put them at an average of sixteen dollars per month; and another at twenty dollars per month with boarding, but if allowed for lost time and washing, one half of this should be deducted, and if ordinary clothing were furnished, it would take nearly the other half. The plaintiff offered to read in evidence the will of the said Nicholas Stansbury; and the defendants objected, but the court overruled said objection, and said will was read to the jury. It is dated February 10, 1875, was duly admitted to probate by the county court of Brooke county on the 12th day of February, 1877, and is as follows:

"I, Nicholas Stansbury, being in reasonable health of body and of a sound and disposing mind, knowing the uncertainty of life and the certainty of death, do make this my last will and testament, and first I desire that all my funeral expenses and just debts shall be paid, and I appoint my sons, Daniel B. Stansbury, John W. Stansbury and Elisha Stansbury, my executors. To my son Elisha I give the north end of my farm by a line understood between the Walker brothers, including the stable to be taken off the south end of the land surrounding the stable to be taken off the south end of the farm, and Abraham Stansbury to have the privilege of using fruit from the orchard for family use for a term of ten years, also to have the privilege of taking coal for the use of his family without limit; and to my son Abraham II. Stansbury, I give the south end of my farm by the same division line a that of Elisha above mentioned and the reservations made from Elisha in the orchard and coal. I value my farm at seventeen thousand six hundred dollars. Divided as above between said Elisha and Abraham, each division of the land valued at eight thousand eight hundred dollars, giving Elisha four thousand dollars for services rendered, leaving a balance of four thousand eight hundred dollars, and to Abraham eight thousand eight hundred dollars in the value of the land, three thousand dollars for his services rendered, leaving a balance of five thousand eight hundred dollars; and I give to my sons, Elisha Stansbury and Abraham H. Stansbury, all of my farm stock and implements, grain on sarin, growing and otherwise, and the said Elisha Stansbury and Abraham II. Stansbury are to take special care of my beloved wife, Rebecca Stansbury, their mother, during her natural life, and give her a decent burial when dead; and to my daughter, Dorcas Stansbury, I give a home with her brothers and mother as long as she may remain with and take care of her mother; and to my children, Daniel B. Stansbury, Joseph Stansbury, Elisha Stansbury, Sally Scott, John W. Stansbury, Dorcas Stansbury, Samuel Stansbury, Abraham Stansbury, and to my granddaughter, Rebecca Wright, I give unto the above-named nine persons the sum of three thousand dollars each; and to my daughter, Sarah Scott, I authorize my executors to pay the interest on three thousand dollars annually; and to my son, Samuel Stansbury, I give three thousand dollars, and authorize my executors to pay him the interest thereon annually; and to my granddaughter, Rebecca Wright, I give the interest on three thousand dollars to be paid annually by my executors; and I direct my executors; if the above amounts, as a portion of it is in bonds secured by deed of trust for coal, understood if it has to be collected according to law, the above specified legacies to be in proportion, whether it makes more or less money, and in the above legacies, where interest only is directed to be paid, if my executors think it best to invest the principal in real estate for the use of the legatees, I give them power to do so and stop the interest. Given under my hand and seal this 10th day of February, 1875.

"Nicholas Stansbury. [Seal.]" The executors named in the will declined to act; and the defendants, James E. Watt and George McWha, qualified as administrators with the will annexed. There was also some evidence tending to show, that about the time the plaintiff arrived at his majority, his father said to him, that if he would stay with him, he would pay him for it; aud the plain- tiff said he would stay; hut this was contradicted by other testimony, and this Court cannot say, whether said evidence establishes an agreement to pay for services or not. There wTas also other testimony; but for the purposes of this opinion it is not material to state it.

After the jury returned their verdict, the defendants moved the court to set aside the same and grant them a new trial, upon the ground that the verdict was contrary to the evidence, which motion the court overruled, and the defendants excepted.

The case was brought to this court on the petition of the defendants.

R. G. Barr tor plaintiff in error cited the following authorities: 8 Graft. 110; 18 Gratt, 329; 1 Smith Lead, Cas. 953; Id. 961; Code ch. 104 § 10; 2 You. & Coll. 208; 3 Hare 281; 1 Nev. &. M. 421 (28 E. C. L. 327); 29 Wis. 278; 5 Wis. 472; 22 Wis. 93; 44 Pa. St, 402; 29 Pa. St. 369; 23 Ind. 50; 16 111. 296; 41 Mo. 441; 33 N H. 581; 3 Dev. 348; Wright (Ohio) 134; 17 Yt. 556; 5 Watts & S. 513; 5 Cas. 369.

G. W. Caldwell for appellee.

Snyder, Judge, announced the opinion of the Court:

The plaintiffs in error insist, that the circuit court erred in permitting the will of Nicholas Stansbury to be read to the jury over their objection. The record shows, that the defendants objected generally to the reading of said will to the jury, and that said objection was overruled, and the will read; but it does not show, that the defendants excepted to said action of the court,

It is a rule of law generally enforced by this Court, that where an objection is made to the introduction of evidence and overruled by the court, and no exception is taken, such failure to except shall be held to be a waiver of the objection. In this case however, even if an exception had been taken, the action of the court could not be disturbed, because, where a paper is offered in evidence, and a general objection is made to its being read, and the objection is overruled, this court will not treat such ruling as error, if such paper is proper evidence for any purpose, although, if the grounds of objection had been specified, it might have been the duty of the trial-court to limit the purposes, for which it could be considered as evidence by the jury. Was said will admissible for any purpose? This being an action for services, any evidence tending to show, that services had been rendered, would be competent, The testator in this will states,...