Keeley v. Riley

*678 Maxwell, Judge: This ease involves the claim of James Keeley and Katherine Keeley, his wife, for $25,000.00 against the estate of James L. Hawley, deceased. The claim was allowed by the commissioner of accounts to whom the settlement of the estate of said decedent had" been referred by the county court of Ohio County. The commissioner’s finding was successively affirmed by both the county court and circuit court of said county. This writ of error was awarded to the judgment of the circuit court. The basis of the claim is an alleged oral contract between the Keeleys and James L. Hawley under the terms whereof Hawley, in consideration of services rendered and to be rendered to him by the Keeleys, agreed to bequeath to them the sum of $25,000.00. Hawley died testate November 13, 1930, without having made testamentary or other provision for the Keeleys. From the report of the commissioner of accounts, who is an experienced member of the Ohio County Bar, we take the following excerpts: “Your Commissioner further finds that James Keeley and Katherine Keeley had been in the personal service of Mr. James L. Hawley for a number of years; that Mrs. Keeley, on or about the .. . .day of April, 1928, told Mr. Hawley that she was going to leave his service and that Mr. Hawley stated that he did not want her to leave his service, and that he could not get along without the services of Mr. and Mrs. Keeley, and if Mr. Keeley would stay with him and take care of him until he died, he would leave him Twenty-five Thousand Dollars in his will. The Keeleys then agreed with Mr. Hawley that they would not leave Mr. Hawley, but would stay with him and take care of him until he died; in fact they did stay with Mr. Hawley and did take care of him until his death. Mr. Hawley was about eighty-eight years of age at the time of his death, a bachelor living alone, and for many years previous to his death, spent many evenings at the Keeley home or the Keeleys spent many evenings with Mr. Hawley in his rooms. “Mr. Hawley frequently stated that the Keeleys were the only family he had. At the time Mr. Hawley made this con *679 tract with Mr. and Mrs. Keeley he was afflicted physically and was very sensitive about his condition. Because of his condition his food had to be prepared specially; Mrs. Keeley knew this and prepared all of his food in this special manner so that he was satisfied with it. “Mr. Hawley was a wealthy mail; he had no near relatives in the State and at the time of his last illness, with the exception of the physician and a professional nurse, the Keeleys were the only people that were with him and administered to him until the time of his death. The Keeleys were poor people and Mr. Hawley frequently stated that the compensation he was paying' them was meager. Mr. Hawley also frequently admitted that the Keeleys were entitled to a substantial legacy and that he was going to provide for them. * * * “Your Commissioner further finds that from all of the facts and circumstances that the amount of Twenty-five Thousand Dollars is not an unreasonable or excessive provision, and no creditor, devisee, legatee or next of kin would be unjustly or improperly affected by the allowance of this claim; that under all the facts and circumstances of the case your Commissioner finds that the contract alleged by the claimants has been fully and clearly proven, and has been performed by the Keeleys and that Mr. Hawley did not make any provision in his will for the Keeleys and that the Keeleys are entitled to the payment of their claim in the amount of Twenty-five Thousand Dollars ($25,000.00) with interest thereon from November 13, 1931, at the rate of 6% per annum. ’ ’ In addition to the said finding of facts, it is to be noted that in August, 1927, Mr. Hawley prepared in his own handwriting but did not execute a contemplated codicil to his will as follows: “August 9th 1927 Codicil Number One added this Ninth day of August 1927 to my last will and testament .I give and bequeath to my honest and faithful emploees James Keeley twenty five.thousand ($25000) dollars if he be living at the time of my death Say he is not living at the time of my death then I leave twenty five ($25000) dollars to his wife Katherine Keeley if she be living at the time of my death ’ ’ *680 On behalf of the Keeleys, it is testified that the above mentioned verbal contract was made between the testator and the claimants in the month of April, 1928. It is vigorously urged by the defendants, for reasons which they point out, that the contract could not have been made at that time with the attendant circumstances narrated by the claimants. The answer to that proposition is that the date is not material. The essential inquiry is whether the contract was in fact made. On evidence amply sufficient to sustain him, the commissioner has found that such contract was made. Margaret McNamara, daughter of the Keeleys, and Edwin Keeley, their son, testified in support of the claimants’ contention in respect of the verbal agreement. Mrs. McNamara says she heard the conversation. Edwin says that Mr. Hawley told him about it the evening of the same day in the presence of other members of the Keeley family. Apropos of this situation, the circuit court, in written opinion, stated: “If this court were deciding the matter as now heard de novo, the point that would carry most conviction in regard to the stories of these two witnesses would be the general atmosphere of the case. So far from being the kind of contract James L. Hawley would not have made, this seems, under the evidence, to be the exact kind of contract which he would have made. Mr. Hawley had no real relatives living in the same city. He was generally friendly with his relatives but they were not near him. He depended more on Mr. and Mrs. Keeley for personal services about his home and, for that matter, for companionship, than on anyone else. So far from being improbable, the contract is decidedly probable.” Where there is substantial evidence to support findings of fact, and they are not at variance with the preponderance of the whole evidence, they will not be disturbed by an appellate court on review. Adkins v. Perry, 114 W. Va. 829, 174 S. E. 377; Harwood v. Harwood, 112 W. Va. 344, 164 S. E. 290. We affirm the judgment of the trial court. Affirmed.