Williams. v. Moss, (No. 7692)

• Citation: 114 W.Va. 488
• Decision Date: 16 December 1933
• Docket Number: (No. 7692)
• Court: West Virginia Supreme Court
• Parties: W. M. Williams et al. v. C. Earl Moss and E. R. Moss

114 W.Va. 488

W. M. Williams et al.

v.C. Earl Moss and E. R. Moss

(No. 7692)

Supreme Court of Appeals of West Virginia.

Submitted November 8, 1933.

Decided December 16, 1933.

Contracts

"Services rendered and benefits conferred, under circumstances rendering lack of expectation to be compensated therefor highly probable, impose no obligation to make such com pensation, in the absence of proof of an antecedent or contem- poraneous promise thereof, under which the services were

ren-dred or the benefits conferred." Cox v. Davis, 85 W. Va. 604, 102 S. E. 236, Pt. 2, Syllabus.

Appeal from Circuit Court, Hampshire County.

Proceeding by W. M. Williams and others against C. Earl Moss and another. The county court reversed the action of the commissioner of accounts in disallowing a note against the estate of Miss Mollie M. Taylor, and held the note to be a valid debt against the estate, and from an order of the circuit court reversing the finding of the county court, and reinstating the finding of the commissioner of accounts, C. Earl Moss and another appeal.

Affirmed.

Wm. MacDonald and Hummel, Blagg &Stone and Rummel Anderson, for appellants.

George H. Williams, for appellees.

Kenna, Judge:

The question presented by this appeal is whether a note dated October 16, 1929, payable to E. R. Moss in the sum of $4,000.00 and to C. Earl Moss in a like sum thirty days after the death of Miss Mollie M. Taylor and signed by her, is a valid debt against the estate of the maker who died about a year later. The commissioner of accounts disallowed the note. Upon appeal to the county court of Hampshire County, the action of the commissioner was reversed and the note held to be a valid debt against the estate. Upon appeal to the circuit court of Hampshire County, the finding of the county court was in turn reversed and the finding of the commissioner of accounts re-instated and sustained. It is from the finding of the circuit court that this appeal is prosecuted by the payees of the note, E. R, Moss and C. Earl Moss.

The note in question was caused to be prepared by E. R. Moss and was by him presented to Miss Mollie M. Taylor in the kitchen of her home in the presence of one other person, a qualified but not entirely disinterested witness, who testifies that upon signing the note and re-delivering it to E. R. Moss, testatrix stated in substance: '' This is for those two boys; they have done a great deal of service for me and I think as much of those boys as if they were my own children.''

The appellants rely mainly upon the presumption of consideration that attaches by reason of the stipulation contained in the note to that effect and its execution and delivery to the payees, and upon the proposition laid down in Bade v. Feay, 63 W. Va. 166, 61 S. E. 348, to the effect that in a transaction of this nature, the maker's estimate of the value of the services will not be disturbed on the ground of disparity between the actual value thereof and the amount of the note, under ordinary circumstances. These propositions may be admitted.

On the other hand, the appellees contend that the competent proof introduced by them at the hearing is more than sufficient to overcome all presumptions of consideration, and to establish by a clear preponderance of the evidence that under the circumstances, contended for by appellants as those giving rise to the consideration, no consideration in fact moved from the payees of the note to the decedent. Appellees say that natural love and affection will not support the note as a consideration, although it is a good, as distinguished from a valuable, consideration at law; and that in so far as services rendered by E. R. Moss and C. Earl Moss to the decedent are concerned, their proof shows such services to have been non-existent in any sense that would import an undertaking on the part of the decedent to pay for them, and an expectation on the part of the payees of the note that such services should be paid for by the decedent. They urge furthermore that the note in question cannot be taken as a promissory note in any event, but that it is, in legal effect, nothing more than an attempted testamentary gift which necessarily fails for lack of form.

We do not pass upon the question of...