IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2019 Term

_______________

No. 18-0210

_______________

ANDREA M. SIMMONS, Executor of the 

Estate of Roger G. Fussell,

Petitioner Below, Petitioner

v.

JOANN FUSSELL,

Respondent Below, Respondent

____________________________________________________________

Appeal from the Circuit Court of Randolph County

The Honorable David H. Wilmoth, Judge

Civil Action No. 17-C-64

AFFIRMED

____________________________________________________________

Submitted: March 13, 2019

Filed: April 12, 2019

John J. Wallace, IV, Esq.

Joseph A. Wallace, Esq.

Wallace Law Offices, L.C. Inc.

Elkins, West Virginia

Counsel for the Petitioner

Harry A. Smith, III, Esq.

Jory & Smith, L.C.

Elkins, West Virginia

Counsel for the Respondent

JUSTICE ARMSTEAD delivered the Opinion of the Court.

FILED

April 12, 2019

released at 3:00 p.m.

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
i

SYLLABUS BY THE COURT

1. “‘In reviewing challenges to the findings and conclusions [found by a 

special commissioner that were adopted by the circuit court], a two-pronged deferential 

standard of review is applied. The final order and the ultimate disposition are reviewed 

under an abuse of discretion standard, and the circuit court’s underlying factual findings 

are reviewed under a clearly erroneous standard. Questions of law are subject to a de novo 

review.’ Syllabus Point 1, Public Citizen, Inc. v. First National Bank in Fairmont, 198 

W.Va. 329, 480 S.E.2d 538 (1996). Syllabus Point 1, Napier v. Compton, 210 W.Va. 594, 

558 S.E.2d 593 (2001).” Syllabus Point 1, Dodd v. Potomac Riverside Farm, Inc., 222 W. 

Va. 299, 664 S.E.2d 184 (2008).

2. “‘The admissibility of testimony by an expert witness is a matter 

within the sound discretion of the trial court, and the trial court’s decision will not be 

reversed unless it is clearly wrong.’ Syllabus Point 6, Helmick v. Potomac Edison Co., 185 

W. Va. 269, 406 S.E.2d 700 (1991).” Syllabus Point 4, W. Va. Dep’t of Transp., Div. of 

Highways v. W. Pocahontas Props., L.P., 236 W. Va. 50, 777 S.E.2d 619 (2015). 

3. “If a person make an oral promise to pay the debt of another in order 

to derive some benefit to himself thereby, which he did not otherwise have, such promise 

is an original undertaking and not within the statute of frauds; and in such case it matters 

not if the original promisor be not released.” Syllabus Point 2, Howell v. Harvey, 65 W. 

Va. 310, 314, 64 S.E. 249, 251 (1909).
ii

4. “An oral promise to pay the debt of another, when supported by a new 

consideration beneficial to the promisor, is not within the statute of frauds.” Syllabus Point 

1, Mankin v. Jones, 68 W. Va. 422, 69 S.E. 981 (1910).

5. “A collateral oral promise by one to pay another’s debt is not binding 

where no benefit accrues to the person making such promise.” Syllabus Point 5, Mankin 

v. Jones, 63 W. Va. 373, 60 S.E. 248 (1908).
1

Armstead, Justice:

Petitioner, as Executor of the Estate of Roger G. Fussell, appeals the February 7, 

2018, order of the Circuit Court of Randolph County that affirmed an order of the Randolph 

County Commission, which, in turn, affirmed the findings of its special fiduciary 

commissioner. The special fiduciary commissioner found that: (1) two bank notes, 

obtained by Respondent Joann Fussell (hereinafter, “Joann”), were just debts of the estate; 

(2) Joann was not a creditor beneficiary of a life insurance policy on the life of Roger G. 

Fussell (hereinafter, “Roger”); and, (3) written appraisals of certain assets located in West 

Virginia and Georgia were appropriate considerations to establish fair market value.

We have reviewed the record before us, heard the oral arguments of the parties, and 

reviewed the pertinent legal authorities. For the reasons stated below, we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 20, 2000, Joann married Roger, and the Fussells lived together as husband 

and wife for the first six years of their marriage. Though never divorced, they were 

estranged the last three years of their marriage and lived separately and apart for those 

years. Even though they were estranged at the time of Roger’s death, his Will, executed 

on November 5, 2009, a mere six weeks prior to his December 21, 2009, death, provided

for his wife:

SECOND: If I am married to Joann M. Fussell at the 

time of my death, I wish for her to have her statutory share as 

provided by the laws of the State of West Virginia recognizing 

that we have lived separate and apart for the last several years 

preceding the date of this instrument.
2

Long before that, on January 23, 2001, Joann obtained a loan from Freedom Bank,

1

solely in her name, in the original principal amount of $40,010.

2

 The next day, January 24, 

2001, a check in the amount of $40,000 was written by Joann to Freedom Bank. Freedom

Bank then wrote a cashier’s check in the same amount to Roger. Joann’s loan with 

Freedom bank was subject to allonges,3 which had the cumulative effect of adding an 

additional $16,505.99 to the loan. From those proceeds, a cashier’s check from Freedom 

Bank in the amount of $15,844.21 was paid to the Sheriff of Randolph County to redeem 

property taxes on a parcel of land owned by Roger, and a separate cashier’s check in the 

amount of $37.00 was paid to the Clerk of the Randolph County Commission for the 

redemption fees on that parcel. The balance of the monies generated by the allonges were

paid to Roger.

On December 30, 2008, Joann obtained a second loan, from BC Bank, solely in her 

name, in the original principal amount of $50,000. The check from BC Bank to Joann for 

those loan proceeds was endorsed on the back, “s/Joann M. Fussell, pay to the order of 

Roger G. Fussell, s/Roger Fussell.”

 

1 According to the parties, the original loan was obtained from 

Belington Bank. That entity changed its name to Freedom Bank in June 2004. For 

ease of understanding, this entity is referred to as Freedom Bank throughout this 

opinion.

2 Ten dollars was for a flood certification fee.

3

“[A]llonge (a-lawnzh) [French allonger “to lengthen”] (1859) . . . A 

slip of paper sometimes attached to a negotiable instrument for the purpose of 

receiving further indorsements when the original paper is filled with indorsements.”

Allonge, Black's Law Dictionary (10th ed. 2014).
3

Importantly, the entire proceeds of both bank loans taken solely in Joann’s name, 

were loaned by Joann to Roger. Joann testified that this arrangement was necessary for 

Roger to obtain loans, because he was unable to obtain bank loans in his own name. It is 

undisputed that Joann did not use any of the proceeds of the loans she obtained from the 

banks. She promptly loaned those proceeds to Roger. Until just prior to his death, it is 

also undisputed that checks drawn on accounts on which Roger was a signatory4 were 

written and made all payments directly to both banks. In October 2009, Joann started

making payments on both loans to the banks as Roger began to succumb to his final illness. 

Joann alleges that she had an oral contract, which provided that in exchange for her loaning

all of the bank loan proceeds to Roger, he would repay her by making her payments directly 

to the banks.

Prior to his death, and unknown to Joann, Roger made Joann the sole beneficiary on 

a policy of life insurance. Following Roger’s death, Joann received the proceeds of that 

life insurance policy in the amount of $270,212. Until Joann was contacted by Petitioner 

Andrea Simmons (hereinafter, “Simmons”) after Roger’s death and told to complete 

certain insurance forms, Joann had no knowledge of the existence of any life insurance 

policy in which she was named beneficiary. After receiving these proceeds, Joann wrote 

a check to the estate in the amount of $213,914.31, to provide it liquid assets. A portion 

 

4

In reviewing the record, though all checks were drawn on bank 

accounts on which Roger was a signatory, at least four of the checks in evidence 

were signed by Petitioner Andrea Simmons. Andrea Simmons did not testify below, 

so it is unknown why she signed these checks.
4

of the balance of those proceeds was used by Joann to satisfy the balance on the BC Bank 

loan. 

Following Roger’s death, Simmons opened Roger’s estate in Randolph County. On 

April 1, 2011, Joann filed her claims against the estate:

5

1. $50,241.55, plus interest, for the unpaid balance on the loan Joann made to 

Roger which Joann obtained from BC Bank.

2. $36,094.03, plus interest, for the unpaid balance on the loan Joann made to 

Roger which Joann obtained from Freedom Bank.

On the same day, Joann also filed objections to the estate appraisement, raising issues as 

to the fair market value of certain tracts of real property owned by the estate and situated

in West Virginia and Georgia.6

The issues raised by Joann’s claims and objections were heard before Heather M. 

Weese, Special Fiduciary Commissioner of Randolph County, who conducted a hearing in 

Elkins on March 11, 2016. During this hearing, Joann detailed the arrangement she had 

with Roger. She would obtain loans from banks and then loan that money to Roger. Roger 

would pay the money he owed Joann directly to the banks.

During the hearing, the special fiduciary commissioner heard testimony from three 

certified general appraisers regarding the valuation of certain properties in West Virginia 

 

5 Only the claims at issue in this appeal are noted here. The total 

amount of monetary claims was $310,354.35.

6 Though not noted by the parties, following the filing of the objections, 

the estate came before this Court on appeal on unrelated issues. See Estate of Fussell 

v. Fortney, 229 W. Va. 622, 730 S.E.2d 405 (2012). 
5

and Georgia. For the West Virginia property, Joann called Wayne C. Hart, a certified 

general appraiser in the State of West Virginia, to testify regarding the fair market value of 

one 11.9 acre tract of land in Randolph County. Hart’s written appraisal estimated fair 

market value as of June 15, 2011, eighteen months after Roger’s death, to be $57,000. The 

special fiduciary commissioner found that, “Appraiser Hart testified that the sales market 

has been relative[ly] stable between the period of December 21, 2009, the decedent’s date 

of death, and June 6, 2011, the appraisal value date, and he testified, to a reasonable degree 

of certainty, that the value would not vary more than 10%.” Simmons called no one at the 

special fiduciary commissioner’s hearing to rebut Hart’s testimony, but, on the 

appraisement of estate form filed with the county commission,

7

she valued this property at 

$4,000, as of the date of Roger’s death.

For the Georgia properties, Simmons called Dwain Bell, a certified general 

appraiser in the State of Georgia and Joann called Edward Scott Petty, also a certified 

general appraiser in the State of Georgia, to testify regarding the fair market value of two 

tracts of land in Bacon County, Georgia. The first contained 212.48 acres and the other 

contained 29.5 acres. Bell’s written appraisals estimated fair market value of these two 

tracts as of December 21, 2009, the date of Roger’s death, to be $398,900 for the 212.48 

acre tract and $78,500 for the 29.5 acre tract. Petty’s written appraisals estimated fair 

market value of the two tracts as of April 29, 2011, sixteen months after Roger’s death, to 

 

7

“An executed and signed appraisement form is prima facie evidence . 

. . [o]f the value of the property listed . . . .” W. Va. Code § 44-1-14(g)(1) (2002).
6

be $595,000 for the 212.48 acre tract and $82,600 for the 29.5 acre tract. As to these written 

appraisals, the special fiduciary commissioner found “that market sales data [has] been 

stagnant between 2009 and 2011, and the values wouldn’t have changed much.”

On February 20, 2017, the special fiduciary commissioner issued a ten page written 

decision finding that the claims against the estate for the repayment of the loans Joann 

made to Roger were just debts of the estate, these loans fell within the statute of frauds,

8

and the statute’s requirement of a writing was satisfied with Roger’s endorsement of many 

checks.

9

On the appraisal issues, the special fiduciary commissioner noted the lack of 

evidence presented by the estate and accepted the valuation of Joann’s appraiser – $57,000 

– as the fair market value of the West Virginia property. On the Georgia properties, the 

special fiduciary commissioner split the difference between the appraisals, and established 

fair market value of the 212.48 acre tract as $496,500 and fair market value of the 29.5 acre 

tract as $80,550.

Simmons appealed the special fiduciary commissioner’s decision to the Randolph 

County Commission, which approved that decision by its order of April 20, 2017. 

 

8 The special fiduciary commissioner cited W. Va. Code § 55-1-1(a)

(1990) as the applicable portion of the statute in its written decision. The circuit 

court affirmed this decision. As discussed in more detail below, and as briefed by 

the parties, we believe the provision of the statute of frauds at issue in this appeal is

contained in W. Va. Code § 55-1-1(d) (1990).

9 We are cognizant of the provisions of W. Va. Code § 48-29-301

(2001)(requirement of a writing for contract between husband and wife). As neither 

the parties, nor the circuit court, examined the applicability of this statute, we 

decline to do so.
7

Simmons then appealed the county commission’s decision to the circuit court. By order 

dated February 7, 2018, the circuit court affirmed the county commission’s decision.

II. STANDARD OF REVIEW

“‘In reviewing challenges to the findings and conclusions [found by a special 

commissioner that were adopted by the circuit court], a two-pronged deferential standard 

of review is applied. The final order and the ultimate disposition are reviewed under an 

abuse of discretion standard, and the circuit court’s underlying factual findings are 

reviewed under a clearly erroneous standard. Questions of law are subject to a de novo 

review.’ Syllabus Point 1, Public Citizen, Inc. v. First National Bank in Fairmont, 198 

W.Va. 329, 480 S.E.2d 538 (1996) and Syllabus Point 1, Napier v. Compton, 210 W.Va. 

594, 558 S.E.2d 593 (2001).” Syllabus Point 1, Dodd v. Potomac Riverside Farm, Inc., 

222 W. Va. 299, 664 S.E.2d 184 (2008).

We have also held that, “‘[t]he admissibility of testimony by an expert witness is a 

matter within the sound discretion of the trial court, and the trial court’s decision will not 

be reversed unless it is clearly wrong.’ Syllabus Point 6, Helmick v. Potomac Edison Co., 

185 W. Va. 269, 406 S.E.2d 700 (1991).” Syllabus Point 4, W. Va. Dep’t. of Transp., Div. 

of Highways v. W. Pocahontas Props., L.P., 236 W. Va. 50, 777 S.E.2d 619 (2015). 
8

III. ANALYSIS

As noted above, Simmons raises three issues in this appeal. We will address each 

issue separately.

A. Statute of Frauds

Simmons urges this Court to reverse the circuit court and find that, because there 

was no writing memorializing the agreement between Joann and Roger, their oral 

agreement was within the statute of frauds and is unenforceable. We disagree with the 

circuit court’s conclusion that the oral contract between Joann and Roger was within the 

statute of frauds, but was satisfied by Roger’s many endorsements on checks. However, 

we affirm the decision of the circuit court for different reasons. See Murphy v. Smallridge, 

196 W.Va. 35, 36–37, 468 S.E.2d 167, 168–169 (1996) (“An appellate court is not limited 

to the legal grounds relied upon by the circuit court, but it may affirm or reverse a decision 

on any independently sufficient ground that has adequate support.”); Longwell v. Hodge, 

171 W.Va. 45, 47, 297 S.E.2d 820, 822 (1982) (“We agree with the Circuit Court, and 

affirm its decision, although for different reasons than those expressed by the lower 

court.”); Syllabus Point 3, Barnett v. Wolfolk, 149 W.Va. 246, 140 S.E.2d 466 (1965) 

(“This Court may, on appeal, affirm the judgment of the lower court when it appears that 

such judgment is correct on any legal ground disclosed by the record, regardless of the 

ground, reason or theory assigned by the lower court as the basis for its judgment.”).

The circuit court adopted the special fiduciary commissioner’s finding that the case 

of Young v. Sehon, 53 W. Va. 127, 44 S.E. 136 (1903), was dispositive of this issue. We 
9

disagree. Young was a case where a non-negotiable promissory note was endorsed on its 

back by two individuals. Young, 53 W. Va. 127, 128, 44 S.E. 136, 137. There was no 

question that there was a writing that contained some terms of the note. Id. The question 

in Young was not whether there was a writing within the statute of frauds, but whether parol 

evidence would be admissible “to show the relation of the parties to the note.” Young, 53 

W. Va. 127, 129, 44 S.E. 136, 137. This Court held that parol evidence would be 

admissible. Id., Syllabus Point 1. The statute of frauds was not implicated. 

To analyze the applicability of the statute of frauds, as thatstatute is one of the oldest 

laws still in effect, we feel compelled to briefly discuss the statute’s history. The statute

was first enacted by the British Parliament prior to the establishment of the United States, 

appropriately titled, “An Act for Prevention of Frauds and Perjuries.” 29 Chas. II, c. 3 

(1677). A portion of the 1677 statute provided:

That from and after four and twenty day of June, which 

shall be in the year of our Lord one thousand six hundred 

seventy and seven . . . no action shall be brought whereby to 

charge the defendant upon any special promise to answer for 

the debt, default or miscarriage of another person: . . . unless 

the agreement upon which such action shall be brought, or 

some memorandum or note thereof, shall be in writing, and 

signed by the party to be charged therewith, or some other 

person thereunto by him lawfully authorized.

Id.

The Virginia General Assembly adopted the statute of frauds in 1758. See Beasley 

v. Owen, 13 Va. (3 Hen. & M.) 449, 456 (1809). When West Virginia left the mother state, 

the statute of frauds became part of West Virginia law. W. Va. Const. of 1863, art. XI, § 
10

8, superseded by W. Va. Const. of 1872, art. VIII, § 13. Over the years, there has been 

scant modification to the statute, and the Virginia and West Virginia statutes are still

strikingly similar. Compare Va. Code Ann. § 11-2 (West 1990), with W. Va. Code § 55-1-

1 (1990). The West Virginia version of the statute of frauds at issue in this appeal provides, 

in pertinent part:

No action shall be brought in any of the following cases:

....

(d) To charge any person upon a promise to answer for the 

debt, default, or misdoings of another.

....

Unless the offer, promise, contract, agreement, representation, 

assurance, or ratification, or some memorandum or note 

thereof, be in writing and signed by the party to be charged 

thereby or his agent. But the consideration need not be set forth 

or expressed in the writing; and it may be proved (where a 

consideration is necessary) by other evidence.

W. Va. Code § 55-1-1(d) (1990). The purpose of the statute:

[W]as intended as a shield for the innocent, not as a sword for 

the unconscionable. Whenever invocation of the statute of 

frauds in any instance ceases to be a shield and becomes an 

instrument whereby one seeks to escape the responsibilities of 

his word, and the evidence thereon is clear, the courts have 

acted wisely and courageously in stating that the act was not 

intended to cover such situations and have determined that in 

this instance a man’s word should be held equal to his bond.

William O. Morris, The Leading Purpose Doctrine as Applied to the Statute of Frauds, 62 

W. Va. Law Rev. 339, 340 (1960). One instance in which courts have made an exception 

to the statute of frauds is known as “The Leading Purpose Doctrine.” Id. at 341. Under 

this doctrine, one must examine the oral contract and determine what its leading purpose 

is, to establish if the oral contract falls within the statute:
11

Whether a promise to answer for a debt, for which the 

promissor was not otherwise liable, is or is not within the 

statute depends largely upon the intention of the parties. If it 

is intended that the promise is collateral, it is within the statute 

and must be in writing; if it is an original one, then it is not a 

promise to answer for another’s debt, but to answer for the 

promissor’s own debt and need not be in writing.

Id. at 340. Long before the formation of West Virginia, Judge Spencer Roane of the Court 

of Appeals of Virginia10 squarely placed the leading purpose doctrine into the Virginia 

common law:

Our act of frauds is precisely similar to that of England

touching the point in question, and the distinction between an 

original and collateral promise has been often and solemnly 

settled in that country. That distinction seems to be this; that 

where the person on whose behalf the promise is made, is not 

discharged, but the person promising agrees to see the debt 

paid, so that the promisee has a double remedy, the promise is 

considered as collateral and must be in writing; but where the 

promiser undertakes to become the paymaster it becomes 

immediately his debt and he is liable without writing.

Waggoner v. Gray's Adm'rs, 12 Va. (2 Hen. & M) 603, 611-12 (1808). More recently, this 

Court recognized the continued applicability of the leading purpose doctrine:

The statute of frauds is one noted for its brevity and the 

terseness of its language, yet it has claimed the attention of the 

courts of last resort, both in this country and in England, more 

often perhaps than any other law. It is practically the same in 

all the states. It was enacted to relieve persons and their estates 

against false and fictitious claims, by requiring the highest 

order of proof to establish liability in cases where it is sought 

to recover against a person as the mere voluntary surety or 

guarantor of another; but it has been perhaps as frequently 

invoked to avoid just liability as it has been relied upon to 

protect against injustice. The courts have said that it shall not 

 

10 Now known as the Supreme Court of Virginia.
12

be perverted and made the instrument of accomplishing a 

wrong, and have therefore in the vast majority of cases 

construed it to have no application in those cases where there 

is a consideration supporting the oral promise to answer for the 

debt or obligation of another, other than the release of the 

original obligor, or the extinguishment of the old debt, or 

promise. If the promisor derives a benefit from his oral promise 

which he did not otherwise have, his promise becomes a new 

and original one, and falls not within the purview of the statute.

Howell v. Harvey, 65 W. Va. 310, 314, 64 S.E. 249, 251 (1909). This Court went on to 

succinctly hold:

If a person make an oral promise to pay the debt of 

another in order to derive some benefit to himself thereby, 

which he did not otherwise have, such promise is an original 

undertaking and not within the statute of frauds; and in such 

case it matters not if the original promisor be not released.

Syllabus Point 2, Howell, 65 W. Va. 310, 64 S.E. 249 (1909); Accord Syllabus Point 3, 

Tynes v. Shore, 117 W. Va. 355, 185 S.E. 845 (1936)(“Whether or not the promise of a 

person to pay a debt for which he was theretofore not liable is within the statute of frauds, 

depends on intention. If he intended the promise to be collateral, it is within the statute; if 

original, it is not.”); Syllabus Point 2, Hurst Hardware Co. v. Goodman, 68 W. Va. 462, 

69 S.E. 898 (1910)(“If the main purpose of an oral promise by one person to pay a sum of 

money for which another is liable or may become liable is to secure a direct, personal, and 

pecuniary benefit to the promisor, the promise is original, and not within the statute of 

frauds, though such third person remain liable for the debt.”).

Whether an oral promise is within or without the statute of frauds depends upon the 

question of whether such promise is original or collateral. An original promise is, “[a]n
13

oral promise to pay the debt of another, when supported by a new consideration beneficial 

to the promisor, [and] is not within the statute of frauds.” Syllabus Point 1, Mankin v. 

Jones, 68 W. Va. 422, 69 S.E. 981 (1910). Conversely, “[a] collateral oral promise by one 

to pay another’s debt is not binding where no benefit accrues to the person making such 

promise.” Syllabus Point 5, Mankin v. Jones, 63 W. Va. 373, 60 S.E. 248 (1908).

11

Under the facts of this case, this Court easily finds that the leading purpose of the 

oral agreement between Joann and Roger was an original promise between them and not 

within the statute of frauds. Joann obtained loans from two different banks solely in her 

name. She was solely responsible to the banks for the repayment of these loans. Joann

then loaned the entire proceeds of these loans to Roger, because Roger did not have 

sufficient credit to obtain loans from banks. Roger’s agreement with Joann was not to act 

as collateral for Joann’s loans with the banks, but to pay the money he owed Joann directly 

to the banks, instead of to Joann. Because there was no written agreement between Roger 

and the banks, they would have had no recourse against Roger for the repayment of Joann’s 

loans. If there was such an agreement, it would have been a collateral agreement, where 

Roger assumed Joann’s loans with her creditor. Such an agreement would fall within the 

statute of frauds, and be unenforceable. 

This important distinction is the key to understanding that Joann’s agreement with 

Roger was separate from her loans from the banks. Because Roger did not act as collateral 

 

11 Mankin v. Jones was twice appealed to this Court. See Mankin v. 

Jones, 68 W. Va. 422, 69 S.E. 981 (1910) and Mankin v. Jones, 63 W. Va. 373, 60 

S.E. 248 (1908).
14

on Joann’s loans with the banks, this makes Roger and Joann’s oral agreement separate 

and distinct. This separate agreement was supported by its own consideration, where Joann 

loaned money to Roger that he could not have otherwise obtained from banks, in exchange 

for Roger paying the money he owed Joann directly to the banks.

Therefore, the leading purpose of Joann’s oral agreement with Roger was an original 

promise, separate and distinct from Joann’s contracts with the banks, outside the statute of 

frauds, and is enforceable.

B. Creditor Beneficiary

The next argument made by Simmons is that Joann was a creditor beneficiary of 

Roger’s life insurance policy, and that the proceeds from that life insurance policy satisfied 

any debt owed from Roger to Joann. In support of that argument, Simmons points to dicta 

in Pettus v. Olga Coal Co., 137 W. Va. 492, 72 S.E.2d 881 (1952), which Simmons argues 

establishes Joann as a creditor beneficiary of Roger’s life insurance policy: 

Third persons [sic] beneficiaries under a contract, although not 

parties to it, may be divided into three classes: (1) Such person 

is a donee beneficiary if the purpose of the promisee in 

obtaining the promise of all or part of the performance thereof, 

is to make a gift to the beneficiary, or to confer upon him a 

right against the promisor to some performance neither due 

[nor supposed] or asserted to be due from the promisee to the 

beneficiary; (2) such person is a creditor beneficiary if no 

intention to make a gift appears from the terms of the promise, 

and performance of the promise will satisfy an actual [or 

supposed] or asserted duty of the promisee to the beneficiary; 

(3) such person is an incidental beneficiary if the benefits to 

him are merely incidental to the performance of the promise 
15

and if he is neither a donee beneficiary nor a creditor 

beneficiary.

Pettus, 137 W. Va. 492, 497, 72 S.E.2d 881, 884 (1952). 

This position, however, is not consistent with the law of creditor beneficiaries on 

life insurance policies in West Virginia. Under Legislative Rule, credit life insurance is 

established as a special line of insurance. See W. Va. C.S.R. § 114-6-2 (1995).12 The 

Legislative Rule provides, “‘Credit Life Insurance’ means insurance on the life of a debtor 

pursuant to or in connection with a specific loan or other credit transaction.” Id. § 114-6-

2.1 (1995). To carry credit life insurance, the insurance commissioner requires insurance 

companies to have certain information on the face of their policies or certificates of 

insurance:

Each individual policy or group certificate of credit life 

insurance and/or credit accident and sickness insurance shall, 

in addition to other requirements of law, set forth (i) the name 

and home office address of the insurer, (ii) the names of the 

debtor or in the case of a certificate under a group policy, the 

identity by name or otherwise of the debtor, (iii) the premium 

or amount of payment, if any, by the debtor separately for 

credit life insurance and credit accident and sickness insurance, 

(iv) a description of the coverage including the amount of term 

thereof and any exceptions, limitations and restrictions, and (v) 

shall state that the benefits shall be paid to the creditor to 

reduce or extinguish the unpaid indebtedness. When the 

amount of insurance exceeds the unpaid indebtedness, any 

excess shall be payable to a beneficiary, other than the creditor, 

named by the debtor or to his or her estate.

 

12 The 1995 version of this rule was in effect as of Roger’s death. The 2011 

version made cosmetic changes to this rule.
16

Id. § 114-6-5.2 (1995). No evidence was presented below demonstrating that Roger’s life

insurance policy contained the information required by the Legislative Rule, to legally 

create a credit life insurance policy. Particularly, there was no evidence adduced showing 

that on the face of Roger’s life insurance policy there was information “stat[ing] that the 

benefits [of Roger’s life insurance policy] shall be paid to [Joann] to reduce or extinguish 

the unpaid indebtedness [between Roger and Joann].” Id. This analysis is bolstered by the 

finding of the special fiduciary commissioner that, “[t]he life insurance policies [sic] 

proceeds received by [Joann] as beneficiary thereunder were payable to her irrespective of 

this claim, as a non-probate asset beneficiary, and it was well within her ownership of them 

to satisfy any outstanding debts, including this one. Had [Roger] lived to fully satisfy the 

debt . . . [Joann] would have personally pocketed [the] full claim.” Accordingly, we can 

only conclude that, as a matter of law, the life insurance purchased by Roger was not a 

credit life insurance policy and Joann was not a creditor beneficiary under that life 

insurance policy.

C. Date of Death Appraisal

Simmons’ final argument alleges that Joann’s fair market value written appraisals

of properties in West Virginia and Georgia should not have been considered by the special 

fiduciary commissioner because they were not date of death appraisals, as required by W. 

Va. Code §44-1-14(b):

After having taken the appropriate oath, the personal 

representative shall, on the appraisement form prescribed by 
17

the tax commissioner, list the following items owned by the 

decedent or in which the decedent had an interest and the fair 

market value of the items at the date of the decedent’s death.

W. Va. Code § 44-1-14(b) (2002).

13

 Simmons points to our decision in West Virginia 

Department of Transportation, Division of Highways v. Western Pocahontas Properties, 

L.P., 236 W. Va. 50, 777 S.E.2d 619 (2015)(“WPP”), in support of her argument that the 

offered written appraisals should not have been considered by the special fiduciary 

commissioner. 

In WPP, the appraisal that the trial court excluded “failed to follow the basic 

methodology employed by an expert in the field of property appraisals, and based his 

opinion on information that had no established relevance or reliability.” WPP, 236 W. Va. 

50, 74, 777 S.E.2d 619, 643. The comparable sales in WPP were gleaned from the internet 

and were of coal sales in Indonesia and Australia. Id. 

Here, we have no such issue with the methodology employed by Joann’s appraisers. 

All three of Joann’s written appraisals established fair market value of the appraised 

properties at a different date than that of Roger’s death – December 21, 2009. The West 

Virginia written appraisal offered by Joann had an effective date of June 15, 2011 –

eighteen months after Roger’s death. The two Georgia written appraisals offered by Joann 

had an effective date of April 29, 2011 – sixteen months after Roger’s death. 

 

13 The current version of this code section was adopted by the 

Legislature in 2014. The 2002 version was in effect as of Roger’s date of death, 

and is thus the operative version of the statute for consideration in this appeal. We 

would note that the only difference between the 2002 version and the 2014 version 

is that the term “Tax Commissioner” is capitalized in the 2014 version.
18

In WPP, we held that “‘[t]he admissibility of testimony by an expert witness is a 

matter within the sound discretion of the trial court, and the trial court’s decision will not 

be reversed unless it is clearly wrong.’ Syllabus Point 6, Helmick v. Potomac Edison Co., 

185 W. Va. 269, 406 S.E.2d 700 (1991).” Syllabus Point 4, WPP. Unlike WPP, the special 

fiduciary commissioner made specific factual findings regarding the testimony adduced 

from Joann’s appraisers, which demonstrates why the written appraisals were properly

considered. 

On the West Virginia written appraisal she found, “Appraiser Hart testified that the 

sales market has been relative[ly] stable between the period of December 21, 2009, the 

decedent’s date of death, and June 6, 2011, the appraisal value date, and he testified, to a 

reasonable degree of certainty, that the value would not vary more than 10%.” On the 

Georgia written appraisals she found, “that market sales data have been stagnant between 

2009 and 2011, and the values wouldn’t have changed much.”

Interestingly, the Georgia Court of Appeals was faced with a strikingly similar 

factual circumstance:

Appellant moved to strike Hicks’ testimony because the

effective date of his valuation was January 1, 1989, which was 

after the date of the taking, August 25, 1988. Appellant 

contends that this was erroneous because it did not give 

consideration to the fact that the construction project itself 

could have lowered values in the area. 

. . . .

Hicks stated that he was aware of nothing that occurred 

between the date of the taking and the date of his appraisal to 

make any difference in his valuation. He also stated that in his 
19

opinion the values were valid on August 25, 1988. Appellant’s 

objection is without merit.

Skipper v. Dep’t of Transp., 399 S.E.2d 538, 542 (Ga. App. 1990)(emphasis added). We 

believe the reasoning of the Georgia Court of Appeals is sound in recognizing that if 

competent expert testimony validates an otherwise admissible written appraisal as of a 

certain date, the written appraisal, coupled with the testimony, may be considered by the 

trier of fact. 

Joann’s appraisers provided oral testimony that validated the fair market values in 

their written appraisals as of Roger’s date of death. Accordingly, we find no error.

IV. CONCLUSION

For the reasons stated above, we affirm.

Affirmed.