Thacker's Estate, In re, No. 12717

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND
Citation152 W.Va. 455,164 S.E.2d 301
PartiesIn re ESTATE of Paul S. THACKER (Claim of Beulah Mallow).
Decision Date19 November 1968
Docket NumberNo. 12717

Page 301

164 S.E.2d 301
152 W.Va. 455
In re ESTATE of Paul S. THACKER (Claim of Beulah Mallow).
No. 12717.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 17, 1968.
Decided Nov. 19, 1968.

Page 302

Syllabus by the Court

1. A person asserting a claim against the estate of a deceased person for personal services rendered during his lifetime may not testify in support of such claim for the reason that the testimony of such person involves personal transactions or communications between the claimant and a deceased person and is incompetent and inadmissible under the provisions of Section 1, Article 3, Chapter 57, Code, 1931, as amended; but if the executor or a beneficiary of the estate of the deceased person testifies against such claim and concerning such person transactions and communications the bar of the statute is removed and the testimony of the claimant in support of such claim, given either before or after the testimony of the executor or beneficiary of the estate, becomes competent and admissible.

2. The finding of a trial court upon facts submitted to it in lieu of a jury will be given the same weight as the verdict of a jury and will not be disturbed by an appellate court unless the evidence plainly and decidedly preponderates against such finding.

3. When personal services are performed by one person at the instance and request of another person who is benefited by such services and there is no blood or family relationship between them and no legal or moral obligation that such services should be performed, the law implies a contract that the person who performs such services shall be paid reasonable compensation for such services unless it is shown that the persons intended that such compensation should not be paid.

George I. Sponaugle, Franklin, for plaintiff in error.

Ralph W. Haines, Romney, for defendant in error.

[152 W.Va. 456] HAYMOND, Judge:

Ben H. Hiner, Executor of the Will of Paul S. Thacker, deceased, prosecutes this writ of error to the final judgment of the Circuit Court of Pendleton County, West Virginia, rendered August 9, 1967, in favor of Beulah Mallow against the estate of Paul S. Thacker, deceased, in the sum of $4,200.00 with interest and costs. To that judgment this Court granted this writ of error upon the application of the executor.

By an order of the County Court of Pendleton County the estate of Paul S. Thacker, deceased, was referred to William McCoy, Jr., Commissioner of Accounts of the County Court, for settlement as provided by Section 1, Article 2, Chapter 44, Code, 1931, as amended. The claimant, Beulah Mallow, filed her verified claim before the commissioner in the

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amount of $11,865.00. The claim consisted of $10,800.00 for personal services rendered Thacker from August 1, 1963 to January 21, 1966 and $1,065.00 for an automobile which according to the claimant he promised to give her. The items of the claim for personal services were for part time services from August 1, 1963 to August 1, 1965 at the rate of $300.00 per month, amounting to $7,200.00, and for intensive care and services from August 1, 1965 to January 21, 1966 at the rate of $600.00 per month, amounting to $3,600.00, and aggregated the sum of $10,800.00.

The matter was heard by the commissioner on December 10, 1966, at which time the claimant and fifteen other witnesses testified in her behalf, and Ben H. Hiner, executor of the will of Paul S. Thacker, deceased, and Constance Thacker, the beneficiary under the will, and Evelyn W. Thacker, the former wife of the decedent, testified in opposition to the claim and in behalf of the estate. The commissioner found in favor of the claimant and awarded her $500.00 for services at the rate of $20.00 per week for twenty five weeks. On behalf of the estate the executor excepted to this finding on the ground that the claimant had failed to prove any contract, express or implied, by which she was to be compensated for her services and [152 W.Va. 457] that she had failed to prove any claim against the estate; and the claimant excepted to the report on the ground that the amount allowed was inadequate for the services rendered. No exception was filed by the claimant with respect to the item of $1,065.00 for the automobile which appears to have been abandoned by her. On May 20, 1967, the county court confirmed the report of the commissioner and the claimant appealed to the Circuit Court of Pendleton County.

On August 9, 1967 the proceeding was heard by the circuit court upon the evidence taken before the commissioner of accounts, the ruling and the report of the commissioner and the exceptions to the report, and the order of the county court and the exceptions to the order. The circuit court found that the claimant rendered valuable personal services to Paul S. Thacker, in his lifetime, that she was entitled to recover for such services the sum of $4,500.00, less a credit of $300.00 which she had received, that the balance of $4,200.00 was due and owing to her from the estate of Paul S. Thacker, deceased, and rendered judgment in her favor against the estate in that amount with interest and costs. To that judgment this Court granted this writ of error upon the application of the executor.

The principal errors assigned by the executor are the action of the commissioner of accounts and the circuit court in holding (1) that the testimony of the claimant in support of her claim was admissible; and (2) that the evidence in behalf of the claimant was sufficient to prove her claim.

Paul S. Thacker, who had practiced the profession of dentistry in Franklin, Pendleton County, West Virginia, for several years, died testate while a resident of that county on January 25, 1966. The principal beneficiary in his will, which was probated and recorded January 28, 1966, was his daughter Constance Thacker, and Ben H. Hiner was appointed and qualified as executor. The estate consisted of real estate of the value of $20,000.00 and personal property of the value of $17,376.11, or a total of [152 W.Va. 458] $37,376.11 subject to an undisputed indebtedness of approximately $4,500.00, exclusive of the claim of Beulah Mallow.

The claimant and Paul S. Thacker had been childhood sweethearts and after his marriage their association together led to litigation between him and his wife, in which she obtained a divorce. After the divorce he lived alone in his residence in Franklin and during the last thirty months of his life the claimant rendered the services for which she seeks compensation. Thacker drank heavily and during his later years was a pronounced alcoholic and because of ill health he engaged in little or no practice for some time before his death on January 25, 1966. The evidence of the

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claimant and fifteen other witnesses in her behalf shows clearly that during the period of approximately thirty months before his death the claimant performed services consisting of ordinary housekeeping, cooking, cleaning and laundry work, services similar to those of a practical nurse and...

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7 practice notes
  • Samsell v. State Line Development Co., No. 12840
    • United States
    • Supreme Court of West Virginia
    • May 15, 1970
    ...by an appellate court unless the evidence plainly and decidedly preponderates against such finding.' Point 2 Syllabus, In re: Thacker, 152 W.Va. 455 (164 S.E.2d 3. 'Lack of knowledge on the part of a principal, of any of the material facts connected with an unauthorized act of his agent, [1......
  • Moore v. Goode, No. 17299
    • United States
    • Supreme Court of West Virginia
    • November 10, 1988
    ...they testify as to the deceased's transaction, then there is a waiver of the statutory bar as to the other side. In re Estate of Thacker, 152 W.Va. 455, 164 S.E.2d 301 (1968). The statute also provides that in a wrongful death action "the person sued or the servant, agent or employee of any......
  • Gibson v. McCraw, No. 16492
    • United States
    • Supreme Court of West Virginia
    • July 3, 1985
    ...are presumed to be gratuitous. In re Estate of Fox, 131 W.Va. 429, 433, 48 S.E.2d 1, 4 (1948). See also In re Estate of Page 275 Thacker, 152 W.Va. 455, 164 S.E.2d 301 (1968). Although in some jurisdictions the showing of the family relationship serves merely to rebut the presumption of an ......
  • State ex rel. Harrison v. Coiner, No. 12947
    • United States
    • Supreme Court of West Virginia
    • October 6, 1970
    ...Company, W.Va., pt. 2 syl., 174 S.E.2d 318; Creasy v. Tincher, W.Va., pt. 3 syl., 173 S.E.2d 332; In Re: Estate of Paul S. Thacker, 152 W.Va. 455, pt. 2 syl., 164 S.E.2d 301; Lewis v. Dils Motor Company, 148 W.Va. 515, pt. 2 syl., 135 S.E.2d Furthermore, the relator alleged the same ground,......
  • Request a trial to view additional results
7 cases
  • Samsell v. State Line Development Co., No. 12840
    • United States
    • Supreme Court of West Virginia
    • May 15, 1970
    ...by an appellate court unless the evidence plainly and decidedly preponderates against such finding.' Point 2 Syllabus, In re: Thacker, 152 W.Va. 455 (164 S.E.2d 3. 'Lack of knowledge on the part of a principal, of any of the material facts connected with an unauthorized act of his agent, [1......
  • Moore v. Goode, No. 17299
    • United States
    • Supreme Court of West Virginia
    • November 10, 1988
    ...they testify as to the deceased's transaction, then there is a waiver of the statutory bar as to the other side. In re Estate of Thacker, 152 W.Va. 455, 164 S.E.2d 301 (1968). The statute also provides that in a wrongful death action "the person sued or the servant, agent or employee of any......
  • Gibson v. McCraw, No. 16492
    • United States
    • Supreme Court of West Virginia
    • July 3, 1985
    ...are presumed to be gratuitous. In re Estate of Fox, 131 W.Va. 429, 433, 48 S.E.2d 1, 4 (1948). See also In re Estate of Page 275 Thacker, 152 W.Va. 455, 164 S.E.2d 301 (1968). Although in some jurisdictions the showing of the family relationship serves merely to rebut the presumption of an ......
  • State ex rel. Harrison v. Coiner, No. 12947
    • United States
    • Supreme Court of West Virginia
    • October 6, 1970
    ...Company, W.Va., pt. 2 syl., 174 S.E.2d 318; Creasy v. Tincher, W.Va., pt. 3 syl., 173 S.E.2d 332; In Re: Estate of Paul S. Thacker, 152 W.Va. 455, pt. 2 syl., 164 S.E.2d 301; Lewis v. Dils Motor Company, 148 W.Va. 515, pt. 2 syl., 135 S.E.2d Furthermore, the relator alleged the same ground,......
  • Request a trial to view additional results

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