CHARLESTON.

#### S. F. Shinn, Exr. Etc. *v.*Aurora Westfall, *et als.*

Submitted December 11, 1923.

Decided December 22, 1923.

'1. *Equity*— Where *Report of Commissioner is Not Excepted, to for Premature Reference, Error Waived.*

Where the genuineness of a negotiable promissory note made by a decedent is one of -the issues raised by the pleadings in a chancery cause instituted by the executor to administer the estate under the will, and a reference is had to a commissioner in chancery to ascertain and report upon the validity of the note as a debt against the estate, without objection from any of the parties, and a full, fair and complete hearing is had before the commissioner who. makes report on which are en- ' dorsed exceptions challenging the correctness of his findings, but not excepted to because of the prematureness of the reference; this coux-t will consider the error of premature ref-ertnce waived and will accord to the report andj the decree ■thereon their usual weight, (p. 295).

2. Appeal and *Etaon*— Findings *by Commissioner in Chancery as to Validity of Signature to Note Not Disturbed.*

In such case, where the admissible evidence as to the genuineness of the decedent’s signature to the note is conflicting and there is ample evidence in favor of its validity, the finding of the commissioner and confirmation by the decree will not be disturbed by the appellate court unless clearly erroneous, (p. 297).

3. Executors and *Administrators*— Execution *of Note Established, Where Genuineness of Decedent’s Signature Shown.*

When the genuineness of the decedent’s signature to the note is proven, the signing of the note by him is sufficiently established. (p. 298).

4. *S'ame*— Burden *of Showing Want of Consideration Statedj Want of Consideration Not Shown in Suit on Note Against Decedent.*

The genuineness of the maker’s signature having been established, the note is *prima facie*evidence that it was given for value, and the burden showing want of consideration rests upon him who attacks it on that ground. A case where that burden has not been successfully carried, (p. 298).

Appeal from Circuit Court, Jackson County.

*293Action by S. F. Shinn, executor, etc., against Aurora West-fall and others. Judgment for plaintiff, and defendants appeal.

*Affirmed.*

*Lewis H. Miller*and *S. P. Bell,*for appellants.

*W. P. Boggess,*for appellee.

*J. L. Wolfe*and *M. C. Archer,*for G. W. Shinn.

Lively, Judge:

The decree adjudges valid a note of $1,000, and directs its payment out of the estate of C. P. Shinn, deceased.

The sole controversy is over the validity of this note. The bill is by the executor, is for the purpose of carrying out the provisions of the will, and alleges a deficiency of personal estate for the payment of the debts including the note in question, and prays for a sale of a part of the real estate for that purpose; a settlement of the executorial accounts of plaintiff and an ascertainment of the widow’s rights in the estate; and for general relief. The answer denies that there is a' deficiency of the personal estate, and avers that there is more than enough personal estate to pay the just debts; and denies that decedent owed the note in question, or that he ever executed it, and avers that if G. W. Shinn has such, a note there was lack of consideration. The genuineness of the signature of C. P. Shinn, the maker of the note, is denied by affidavit filed. Upon the coming in of the answer the cause was referred to- a master in chancery to report, among other matters, whether the note held by G. W. Shinn was a valid debt against the estate. The note was the only contested claim against the estate, and the evidence in favor of and against its validity was taken before the master, who in due time reported it as a valid claim against the estate. Exceptions thereto by the contesting devisees were overruled and the decree, complained of, entered.

The errors assigned are: (1) overruling the demurrer of Aurora Westfall and others to- the bill; (2) decreeing the $1,000 note held by G. W. Shinn a valid and existing obligation against the estate of C. P. Shinn, deceased; (3) in *294overruling the exceptions to the commissioner’s report; and (4) rendition of the decree of November 25, 1922.

The third and fourth assignments-of error are necessarily-covered by the second error assigned. The exceptions to- the commissioner’s report are to- the finding of the validity of the $1,000 note; and finding that the real estate will not in five years rent for a sufficient amount to pay the indebtedness. The sufficiency of the rental within that time depends upon whether the $1,000 note shall be paid.

C. P. Shinn died August 3, 1921, leaving a will dated April 27, 1921, in which he directed payment of his just debts, and gave and devised his entire estate to Aliena Shinn Parsons, Geo. W. Shinn, Emma Zora Shinn Nuna, Oda Shinn Lysle, Odelia Shinn Reed, Jessie Shinn Elliott and Aurora Shinn Westfall, each to share equally. The devisees are children of the deceased. His wife, Ellen Shinn, survived. S. F. Shinn, named as executor, who qualified, is a near relative of the deceased. After the qualification of the executor-, G. W. Shinn notified him that he held a note against the estate for $1,000. The personal estate in the hands of the executor amounted to $1,592.71, from which he expended $769.52 for funeral expenses and like charges, leaving a balance of $823.19 in his hands, and it became apparent that if he had to pay the $1,000 note, together with other outstanding- claims and his commissions, he would be compelled to resort to the real estate which consisted of about 54 acres of land in Roane county and a house and lot in the city of Parkersburg. This suit was then instituted by him for the purposes above set out.

It is asserted that the demurrer should have been sustained because the bill fails to allege that plaintiff is acting as executor; and that it does not show that the -personal estate is insufficient for the payment of the debts. The bill is brought by the executor, exhibits the will and alleges that he qualified as executor of the estate on the 23d of August, 1921, and exhibits a certificate of his appointment and qualification as such. The answer admits that the plaintiff is duly qualified *‘ ‘*and is now acting as executor of said last will and testament.” The bill sets out the amount of personal prop*295erty which came into tRe Rands of tRe executor and alleges tRat tRe indebtedness claimed against tRe estate, -naming tRe debts, is in excess of tRe personal estate and tRat it will be necessary to resort to tRe real estate for payment. TRe demurrer to tRe bill was properly overruled.

. TRe point is raised tRat it was error for tRe court to refer tRe cause to a commissioner to ascertain the validity of tRe $1,000 note; tRat tRe answer of contestants of tRe note raised tRe question of its genuineness and. validity; tRat tRis was an issue wRicR sRould Rave been decided by tRe court before reference to a commissioner. No objection appears to Rave been made to tRe order of reference, and no question of premature reference, raised until after tRe decree was pronounced and tRe cause reached tRis court. TRe parties appeared before tRe commissioner and introduced their evidence touching upon the valdity of the note, andj both sides Rave Rad a full .and complete Rearing on the matter in litigation. It is true that a cause cannot be referred to a commissioner for the purpose of permitting the plaintiff to establish the allegations of the bill, and where the matter in issue is one for a decision by the court and not by a commissioner. However, where the reference to the commissioner is made without objection and where it is apparent that the parties Rave Rad a full and complete Rearing before the commissioner, the technical objection comes too late after an adverse decision on the merits. *Jones*v. *Rose,*81 W. Va. 177; 94 S. E. *41; Dewing*v. *Hutton,*48 W. Va. 576; 37 S. E. 670.

We now come to the next question involved, whether the note is a valid obligation against the estate. TRe answer denying the validity of the note is not sworn to; but the affidavit of Mrs. Yager says that the signature of C. P. Shinn to the note is not Ris signature, and she is one of the answering defendants. This puts the genuineness of the signature at issue. Sec. 40, chap. 125, Code. Logically, the first question to be determined is under this issue. If the note be not that of C. P. Shinn, and Ris name thereto is a forgery, then the question of the consideration therefor and all others arising by reason of the note are moot questions. TRe note is as follows:

> *296“$1,000.00 Ripley, W. Va., Nov. 2, 1920. *‘*

> At my death, I promise to pay to the order of (x. W. Shinn, One Thousand Dollars, For value received, negotiable and payable at The First National Bank of Ripley, West Virginia.

> C. P. SHINN.”

C. P. Shinn was very aged at the time of his death, and about the year 1916 owned considerable land in Roane county, a large part of which he disposed of prior to his death, .and at the time of his death he owned the 54 acres described in the bill. He was a pensioner of the federal government, and received oil and gas rentals from some of his lands. About the year 1916, he purchased a house and lot in Parkersburg, moved there and continued his residence in that city until his death.

To sustain the note, G-. W. Shinn .and his two sons, R. A,. Shinn twenty-five years old -and C. O. Shinn thirty years of age, testified that on the day of the execution of the note ■C. P. Shinn, the maker thereof, was at Ripley, Jackson county, attending an election, and called them into a ware room of C. O. Shinn’s grocery store, where R. A. Shinn prepared the note at the request of his grandfather and where his grandfather signed it in the presence of all of them. They saw him sign the note, and detail the consideration therefor. It appears from their evidence that about 1916 on another occasion in the same wareroom, C. P. Shinn had executed a note to G-. W. Shinn for $500 for borrowed money .and that this former note entered into the consideration of the new note. According to their evidence G-. W. Shinn had been looking after his father’s interest in the farm lands a portion of which had been rented since the old gentleman moved to Parkersburg, and that the additional consideration above the old note was services so rendered. It appears .also that each of the two young men had rendered some services to their grandfather in trans-porting bim to and from Parkersburg, one to the amount •of $10, and the other to the amount of $30, and these sums were a part consideration of the note, and direction was given •to their father by the grandfather to settle these small amounts with his two sons, which he did after the note was *297executed. It will be observed that this evidence goes not only to the execution of the note, the genuineness of the signature, but also to the consideration. It is contended by appellants that this evidence in its entirety was incompetent, being the detailing of personal transactions with the deceased. Proper objections and exceptions were taken to its introduction. The evidence of G. W. Shinn is incompetent and should not be considered. It is not so clear that the evidence of the two young men, the one who prepared the note and the other who witnessed the signature and transaction, is incompetent. It is argued on behalf of the appellants that they had an interest in the making of the note by reason of the claims for services which they had against the old gentleman for the $10 and the $30 sums, and that they stand in the shoes of assignors' of these sums to their father who paid them. On the other hand the appellees argue that these small debts have been paid by the father before suit, that the two sons have no interest in the result of the litigation, are not and never were assignors of the debts to their father, and therefore their evidence is competent and not prohibited by sec. 23, chap. 130, Code, which says:

> “No party to an action, suit or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person, derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased, ’ ’

However, the genuineness of the signature is supported by evidence about which there is no controversy. Quite a number of experts were introduced by both sides who testified that the signature is genuine, and to the contrary. The cashiers of the three banks in Ripley, all familiar with C. P. Shinn’s signature and with whose banks he had transacted business, testify that the signature is genuine. Straley, cashier of the First National, at which the decedent kept his account for many years, had known him all his life and knew *298Ms signature well. These witnesses had been in the banking business at that place from eighteen to thirty years. The contestants of the note, children of the maker, with the exception of two or three, say the signature is' not that of their father, and give their reasons therefor. Jones, an experienced banker of Parkersburg and an expert, says the signature is not genuine, judging by comparison with other true signatures. On the other hand ,a portion of the devisees and others who were not interested and who were non-experts say the signature is genuine. The note itself and many other writings to which Shinn attached his signature, and which signatures are agreed to be genuine, were before the commissioner and the lower court, and are now before us. Without attempting to analyze the expert and non-expert testimony, we think the finding of the commissioner and the circuit court on this point cannot be disturbed. Both are entitled to peculiar weight. Striking out the testimony of G. W. Shinn and his two boys as to the actual signing of the note, we think there is sufficient evidence to justify the lower court in finding that the signature to the note is genuine. We have decided many times that where the finding of a question of fact is based upon conflicting depositions or oral testimony, the finding of the commissioner in the first place or of a court thereon is entitled to peculiar weight and will not be disturbed unless clearly erroneous. *Baughman*v. *Hoffman,*90 W. Va. 388; 1 Michie’s Encyc. Dig. 620, and cases cited.

The point is made by appellant’s counsel that there is no competent evidence of the execution of the note. If the signature be genuine, it follows that, the maker executed the note."

Was there sufficient consideration? Appellants assert that the genuineness of the signature being denied by affidavit in support of the answer, the burden of proving consideration was shifted to the holder of the note under authority of *Horner*v. *Amick,*64 W. Va. 172; 61 S. E. 40. That case does not so hold. Where the signature to a paper is denied by proper pleading the burden is upon the holder to prove the genuineness of the signature. The burden rests upon him who asserts. The statute, chap. 125, sec. 40, dispenses *299with proof of the signature unless denied under oath. When denied under oath, he must bring in proof which the statute otherwise dispensed with. The burden remains where it always was. The statute is a rule of evidence, dispensing with proof of the hand' writing when not denied, and requiring proof of him who asserts, when it is denied under oath. But such denial does not place upon the holder the burden of showing consideration for the note; nor does it do so because lack of consideration is charged in the affidavit. The note promising to pay for value received and signed by the maker, his signature being genuine, imports consideration. The note ■ is negotiable; and see. 24, chap. 98A, Code, says:

> “Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration, and every person whose signature appears thereon to have become a party thereto for value.”

The burden of proving lack of consideration of a nego-tible note rests upon him who asserts it, the appellants in this case. Have they overcome the *prima facie*presumption of consideration? It is conceded that if the evidence of R. A. Shinn'and C. 0. Shinn be admissible, consideration is firmly established. But if we strike out this evidence we fail to find sufficient evidence offered by appellants to rebut the presumption of valid consideration. They rely upon the declarations made by G-. W. 'Shinn to the executor and to Mrs. Parsons to the effect that the note was given to him or he would not have it. Mrs. Parsons told him he had this note a short time after his qualification as executor, he said that the testator had given him 22 acres of land in a former will but had changed the will .and gave him the note in place of it, and that he was to have an equal share with the rest of the children and $1,000 besides. The .executor said Shinn remarked that he “gave it to him.” When asked if Shinn told him it was a gift he would not go to that -extent but said Shinn told him his father “gave it to him.” 'Shinn’s explanation of this conversation is that he told the executor that his father had given him this note and said nothing about the consideration; he said the note was given to him or he would not have it. Mrs. Parsons *300says be told ber tbat “father didn’t owe me a cent. He just give tbe note to me.” Tbis is flatly denied by Shinn, who says' be bad a conversation with bis sister in which she said she bad discussed with some one else tbe fact tbat be claimed having such note, and she bad made tbe remark tbat be didn’t steal it, whereupon he answered to ber, “No, be give it to me.” There is evidence from others, not members of tbe family, tbat G-. W. Shinn bad been looking after tbe interests of bis father in tbe land in Roane county, a portion of which was rented, and bad purchased and paid for some grass seed for use on bis father’s land. Does tbe evidence of the executor and Mrs. Parsons, in light of tbe testimony of G. W. Shinn as to tbe conversations, overcome tbe presumption of consideration, stated on tbe face of tbe note and implied by law ? On this point both the commissioner and tbe chancellor have decided tbat the burden has not been overcome. We think the declaration made to tbe executor by Shinn is consistent with bis ownership of the note for a consideration and tbat it may be reasonably concluded that be meant tbe note was signed and banded to him, and not tbat it was a gift without consideration. Tbe evidence of Mrs.' Parsons is direct tbat it was a gift, but tbis conversation is denied. We do not think there is sufficient strength in tbis evidence of want of consideration to justify us in reversing tbe decision of tbe commissioner and tbe lower court in tbat regai*d.

We have not discussed tbe .admissibility of tbe evidence of R. A. Sbinn and R. 0. Shinn as to what transpired when the note was given in tbe ware room. It is not necessary to a disposition of the cause; there is sufficient evidence to prove tbe genuineness of tbe signature to tbe note, and tbe commissioner and tbe lower court having decided in favor of its genuineness upon tbe conflicting evidence, tbat finding will not be disturbed. Tbe same may be said as to tbe finding of the commissioner and the court on tbe issue of consideration; but we think tbe evidence of the executor and Mrs. Parsons fails to overcome tbe presumption of consideration, even should it have been submitted to. us in tbe first instance.

Tbe decree will be affirmed.

*Affirmed.*