Bent, Judge :
At March rules, 1883, in the clerk’s office of Morgan county, Harrison Cann filed his, bill in chancery against the heirs of his father’s estate to enforce payment of his claim for services rendered as evidenced by a certain duebill bearing date the 28th day of April, 1880, calling for three thousand dollars for services rendered by the plaintiff “since he became twenty-one years of age.” The plaintiff made himself a party defendant to this bill as administrator of decedent.
The only appearance for the defendants is the answer of the infants Silas Largent and Elizabeth Largent, by their guardian ad Utem, T. N. B. Davis; an answer filed by George W. Ziler, husband of one of the heirs, and an exception endorsed on the commissioner’s report by the defendants Catherine Ziler,' Susan E. Ambrose, and Sarah Cann. The bill is [141]*141not taken for confessed as to any of the defendants, but on service of sermons an order of reference is entered to ascertain the debts and their priorities against the estate of Jacob Cann, deceased, and the estate liable to the payment of the same. From the commissioner’s report it appears that the personal estate was amply sufficient to pay all the debts against the decedent, with the exception of plaintiff’s claim, and that is the only matter of controversy in the suit, without which no,suit would have been necessary.
According to the law and the decision of this Court in the case of Rader v. Neal, 13 W. Va. 373, in this suit concerning his wife’s separate estate, George W. Ziler was not a necessary party thereto, and therefore the answer filed by him cannot be regarded, as he is too remotely interested in the subject matter to contest plaintiff’s claim in his own right.
The adult defendants who are proper parties to the suit did not think it worth' while to contest the allegations of the bill, but contented themselves with indorsing the following exceptions on the commissioner’s report: “The within report is excepted to by Catherine Ziler, Susan E. Ambrose, and Sarah Cann so far as it allows Harrison Cann a claim against the estate, amounting,. principal and interest, to four thousand nine hundred and twenty-four dollars and fifty cents, all of which should be rejected as improperly allowed.” The report being in accord with the allegations of the bill, to which these defendants made no- appearance, but allowed it to go uncontroverted so far as they were concerned, this exception should have been disregarded by the court, or promptly overruled, as by their silence in not pleading they have admitted the justice of the claim. As to them, neither the report of the commissioner nor any proofs are necessary to support a decree justified by their confession.
It is not so with the infant defendants, who are under the protection of the court, and whose interests must be regarded and preserved by it. The plaintiff has placed himself in an anomalous, though not inequitable position by making himself, not only as the administrator of Jacob Cann,- deceased, but also as the administrator of Elizabeth Largent, deceased, defendant to his own bill. If the claim on which [142]*142be sues is just beyond controversy, there could be nothing wrong in so doing, as equity readily recognizes and distinguishes between personal and representative rights, and can shape its decrees accordingly. But where the obligation of defense rests upon him in his representative capacity, equity will not permit him to make himself, in such capacity, a defendant to his own personal bill, and then treat such bill as taken for confessed as to his decedent's estate, but will require him to establish the debt claimed by him against such estate as fully and completely as though all defense that could possibly be made to such debt were properly interposed to its allowance. If this were not true, and he, by this means, secured the allowance of an illegal debt against the estate of his decedent, he would become personally liable for its payment, and so he has gained nothing by his suit. In section 5, chapter 87, of the Code, it is provided that, “if any personal representative, guardian, curator or committee shall pay any debt, the recovery of which could be prevented by reason of illegality of consideration or lapse of time, or by any other fact within his knowledge, no credit shall be given him therefor." This law applies equally as well where an individual claim of the fiduciary is presented for allowance as where a debt has been paid by him, and the duty devolves upon the court and commissioner before whom his-accounts are presented to prevent the auditing against the estate of any illegal claim; wherefore it becomes incumbent on the court in this case to say whether the claim presented by the plaintiff in his personal- character has been shown to be a proper charge against the estate of the decedent. The bill charges that the decedent, in pursuance of a contract made with the plaintiff to pay him a reasonable compensation for his services as a common laborer on his father’s (decedent) lands, since he became twenty one years of age, •executed to the plaintiff his note or due-bill on the 28th day of April, 1880, for three thousand dollars. The evidence of plaintiff shows that some time after his father’s death he found this due-bill written in his father’s account book. It is also shown that it was in the father’s handwriting. If [143]*143(this due-bill bad been delivered by the deceased to plaintiff, his right to recover would have been beyond question. It not only was not delivered, but plaintiff had no notice of its existence until it came to his hands as the administrator of decedent’s estate. Not being delivered, it had no binding force. Curtis v. Gorman, 19 Ill. 141; Thomas v. Watkins, 16 Wis. 549; Prather v. Zulauf, 38 Ind. 155. To allow it to be •used as an admission or acknowledgment of an indebtedness would, in effect, make it a valid legal instrument, and hence the law requiring delivery would be thwarted. Nor nan it be treated as such an acknowledgment in writing as will avoid the statute of limitations. In 13 Am. & Eng. Enc. Law, p. 760, the law is stated as fellows, to wit: “To make the acknowledgment complete, it must, however, be communicated to some one; and consequently a paper which was never delivered, but was found among th<j debtor’s papers after his death, cannot operate as an acknowledgment.” Also: “A mere writing acknowledging a debt, which is retained by the person making it, and which is never delivered, either to the creditor or to any one else, cannot have the effect of preventing the operation of the statute.” Pershing v. Canfield, 70 Mo. 140; Merriam v. Leonard, 6 Cush. 151.
For the purposes of this suit under the law as we find it the due-bill relied on is worthless unless it can! be treated as an admission of indebtedness on the part of the decedent. In Chamberlayne’s Best, Ev. 486, it is said that a written admission, void as an obligation, is admissible as evidence, although the maker is deceased, and such admission be in the form of a book entry. This appears to be consonant with reason and justice if the admission as alleged is shown to be genuine and indisputable; but where its genuineness is attacked, and it is not sustained by a clear preponderance of legal testimony, its weight as evidence is destroyed, and it should be received with the'greatest caution, if at all.
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Bent, Judge :
At March rules, 1883, in the clerk’s office of Morgan county, Harrison Cann filed his, bill in chancery against the heirs of his father’s estate to enforce payment of his claim for services rendered as evidenced by a certain duebill bearing date the 28th day of April, 1880, calling for three thousand dollars for services rendered by the plaintiff “since he became twenty-one years of age.” The plaintiff made himself a party defendant to this bill as administrator of decedent.
The only appearance for the defendants is the answer of the infants Silas Largent and Elizabeth Largent, by their guardian ad Utem, T. N. B. Davis; an answer filed by George W. Ziler, husband of one of the heirs, and an exception endorsed on the commissioner’s report by the defendants Catherine Ziler,' Susan E. Ambrose, and Sarah Cann. The bill is [141]*141not taken for confessed as to any of the defendants, but on service of sermons an order of reference is entered to ascertain the debts and their priorities against the estate of Jacob Cann, deceased, and the estate liable to the payment of the same. From the commissioner’s report it appears that the personal estate was amply sufficient to pay all the debts against the decedent, with the exception of plaintiff’s claim, and that is the only matter of controversy in the suit, without which no,suit would have been necessary.
According to the law and the decision of this Court in the case of Rader v. Neal, 13 W. Va. 373, in this suit concerning his wife’s separate estate, George W. Ziler was not a necessary party thereto, and therefore the answer filed by him cannot be regarded, as he is too remotely interested in the subject matter to contest plaintiff’s claim in his own right.
The adult defendants who are proper parties to the suit did not think it worth' while to contest the allegations of the bill, but contented themselves with indorsing the following exceptions on the commissioner’s report: “The within report is excepted to by Catherine Ziler, Susan E. Ambrose, and Sarah Cann so far as it allows Harrison Cann a claim against the estate, amounting,. principal and interest, to four thousand nine hundred and twenty-four dollars and fifty cents, all of which should be rejected as improperly allowed.” The report being in accord with the allegations of the bill, to which these defendants made no- appearance, but allowed it to go uncontroverted so far as they were concerned, this exception should have been disregarded by the court, or promptly overruled, as by their silence in not pleading they have admitted the justice of the claim. As to them, neither the report of the commissioner nor any proofs are necessary to support a decree justified by their confession.
It is not so with the infant defendants, who are under the protection of the court, and whose interests must be regarded and preserved by it. The plaintiff has placed himself in an anomalous, though not inequitable position by making himself, not only as the administrator of Jacob Cann,- deceased, but also as the administrator of Elizabeth Largent, deceased, defendant to his own bill. If the claim on which [142]*142be sues is just beyond controversy, there could be nothing wrong in so doing, as equity readily recognizes and distinguishes between personal and representative rights, and can shape its decrees accordingly. But where the obligation of defense rests upon him in his representative capacity, equity will not permit him to make himself, in such capacity, a defendant to his own personal bill, and then treat such bill as taken for confessed as to his decedent's estate, but will require him to establish the debt claimed by him against such estate as fully and completely as though all defense that could possibly be made to such debt were properly interposed to its allowance. If this were not true, and he, by this means, secured the allowance of an illegal debt against the estate of his decedent, he would become personally liable for its payment, and so he has gained nothing by his suit. In section 5, chapter 87, of the Code, it is provided that, “if any personal representative, guardian, curator or committee shall pay any debt, the recovery of which could be prevented by reason of illegality of consideration or lapse of time, or by any other fact within his knowledge, no credit shall be given him therefor." This law applies equally as well where an individual claim of the fiduciary is presented for allowance as where a debt has been paid by him, and the duty devolves upon the court and commissioner before whom his-accounts are presented to prevent the auditing against the estate of any illegal claim; wherefore it becomes incumbent on the court in this case to say whether the claim presented by the plaintiff in his personal- character has been shown to be a proper charge against the estate of the decedent. The bill charges that the decedent, in pursuance of a contract made with the plaintiff to pay him a reasonable compensation for his services as a common laborer on his father’s (decedent) lands, since he became twenty one years of age, •executed to the plaintiff his note or due-bill on the 28th day of April, 1880, for three thousand dollars. The evidence of plaintiff shows that some time after his father’s death he found this due-bill written in his father’s account book. It is also shown that it was in the father’s handwriting. If [143]*143(this due-bill bad been delivered by the deceased to plaintiff, his right to recover would have been beyond question. It not only was not delivered, but plaintiff had no notice of its existence until it came to his hands as the administrator of decedent’s estate. Not being delivered, it had no binding force. Curtis v. Gorman, 19 Ill. 141; Thomas v. Watkins, 16 Wis. 549; Prather v. Zulauf, 38 Ind. 155. To allow it to be •used as an admission or acknowledgment of an indebtedness would, in effect, make it a valid legal instrument, and hence the law requiring delivery would be thwarted. Nor nan it be treated as such an acknowledgment in writing as will avoid the statute of limitations. In 13 Am. & Eng. Enc. Law, p. 760, the law is stated as fellows, to wit: “To make the acknowledgment complete, it must, however, be communicated to some one; and consequently a paper which was never delivered, but was found among th<j debtor’s papers after his death, cannot operate as an acknowledgment.” Also: “A mere writing acknowledging a debt, which is retained by the person making it, and which is never delivered, either to the creditor or to any one else, cannot have the effect of preventing the operation of the statute.” Pershing v. Canfield, 70 Mo. 140; Merriam v. Leonard, 6 Cush. 151.
For the purposes of this suit under the law as we find it the due-bill relied on is worthless unless it can! be treated as an admission of indebtedness on the part of the decedent. In Chamberlayne’s Best, Ev. 486, it is said that a written admission, void as an obligation, is admissible as evidence, although the maker is deceased, and such admission be in the form of a book entry. This appears to be consonant with reason and justice if the admission as alleged is shown to be genuine and indisputable; but where its genuineness is attacked, and it is not sustained by a clear preponderance of legal testimony, its weight as evidence is destroyed, and it should be received with the'greatest caution, if at all.
The commissioner to whom the matter was referred finds in favor of the genuineness of the paper, but the court, on an examination of the evidence, overrules and disaffirms the report. Hence it devolves upon this Court to determine for [144]*144itself from the facts and circumstances disclosed by the record whether it will sustain the conclusion of the commissioner or that of the Circuit Court. Roots v. Kilbreth, 32 W. Va. 585 (9 S. E. Rep. 927).
Examining the evidence, we find that the following nine witnesses introduced by the plaintiff, to wit, Lewis Allen, George Blakely, J. H. Buzzard, William P. Smith, H. Clay Spohr, Edmund Pendleton, Franklin Farris, Albetto Men-denhall and J. S. Duckwall (an attorney for plaintiff), testify more or less strongly that they are acquainted with the handwriting of Jacob Cann, deceased, and that they believe the signature tO' the controverted paper to be his. An other witness for the plaintiff, John W. Beclitol, who was well acquainted with decedent’s signature when written with a pen, testifies that he is unable to say that the signature in controversy ^written with a pencil is his genuine signature. On the other hand, the following seven witnesses, to wit, William J. Fleece, Andrew J. Davis, John J. Hertzel, Jefferson Vandersoll, John Frederick, William Z. Catlett, and Joshua Ziler, testify just as strongly, and some of them even more emphatically, that the controverted signature is not the genuine signature of the decedent, and some of them give good reasons for the belief that is in them. The latter are sustained by many of the circumstances surrounding the transaction. The plaintiff himself states that, although he was looking carefully through his father’s papers and books for something o'f the kind, he did not discover this due-bill until he had looked through this little account book three times, and not until some time after his father’s death; and he never made the discovery known to his mother or sisters until he had failed to get the latter to deed him the home farm, even though he promised them to will it to their children; and they testify that they did not know it until after this suit was brought, nearly two years after the death of their father, and then their first information did not come from their brother, although he had ample opportunity to inform them. On the contrary, he did inform one of his sisters, about six months after the death of his father, that he had examined his books and papers carefully, and [145]*145could find nothing in Ms own favor except a credit for one bog. His concealment of this matter from bis sisters, and making no claim for 'compensation to tbem for bis services, until after this suit was instituted, is certainly a very strong circumstance against plaintiff’s claim. In addition, Isaiab J. Smith, a witness for plaintiff, states that in the December before Jacob Cann’s death, which happened in August, decedent told him' “he always intended Harrison should have the home place.” This was almost eight months vafter the date of the controverted paper. Silas J. Largent testified that some four or five months before his death Jacob Cann told him he expected to leave Harrison Cann the home place and what was on it — almost one year after the date of the paper. John Turner testifies that Jacob Cann told him the same thing, but his date is indefinite. All these witnesses approached Jacob Cann at the instance of Harrison, and the latter tried to get him to sign a paper to the effect that he would give Harrison the home farm, but he declined to do so, saying, “I will give him something to show for his work after a while.” H. Clay Spohr’s evidence is to the same effect.
These witnesses certainly prove that there was á persistent effort on the part of Harrison Cann to get his father to deed him the home farm, even up until his death, which the decedent just as persistently declined to do. But there was no intimation at any time to any of these witnesses that said paper writing was in existence. The consideration for any such paper is left by the evidence in very great doubt, especially when the incompetent testimony is expunged from the record. In the case of Riley v. Riley, 38 W. Va. 290, (18 S. E. Rep. 569), Judge Holt, quoting from 17 Am. & Eng. Enc. Law, 336, states the law governing cases of this character as follows, to wit: “But where it is shown that the person rendering the service is a member of the family of the person served and receiving support therein either as parent,, child, or other near relative, a presumption of law arises that such services were gratuitous. * * * Therefore, before the person rendering the service can recover, the express promise of the party served must be shown, or suchi [146]*146facts and circumstances as will authorize the jury to find the services were rendered in the expectation by one of receiving and by the other of making compensation.” There is no express contract proven in this case. And the facts and circumstances show that Harrison Cann lived along with his father, by his own admissions, working and farming for himself, receiving his board and clothes, and doing very much as he pleased; that he never pretended to make any charge or keep any account of his services, but that he was continuously importuning his father to give him the home place, which his father at times stated it was his intention to do.
John W. Nolan, a witness for the defendants, states “that about a year before the death of Jacob Cann he had a conversation with Harrison Cann, in which he asked him how he was getting along with his work, and he said, ‘Not very well; he was doing for the old man; that the old man was not doing much for him.' I made mention to Harrison that I would talk to the old man for him. He said he didn’t think it would do any good, but I could do as I pleased about that.” Afterwards, he says, he fell in with Jacob Cann, and says: “I asked him if he oughtn't to do something for Tip, and he told me he had done more for Tip than any of the balance of the children. Well, he said Tip had stock on the place. He said he knowed what Tip wanted. If he would deed him the home place, he would be satisfied and that he never would do while his head was above the top of the ground. He said Tip wanted all from the other heirs; poor John, he said, especially.” Tip was Harrison’s nickname.
William J. Fleece testifies that about the month of March, 1880, the plaintiff stated to him that he was getting up in years, and that he had worked a long time, and had no guaranty for it, and requested him to see his father, and ascertain whether he would leave him the farm before he left the world, or make some arrangement to compensate or pay him for his work. Harrison Cann made this request twice, and then the witness says: “I .went there, and found Mr. Cann there alone entirely. After talking over other things, I told [147]*147-him wliat I came there for; that Harrison Cann, his son, requested me to come to see him, to know from him what he would leave or give Harrison, his son, if he would go to work on the farm, attend to his father’s things, and have whatever he agreed to give him put in writing. He (Jacob Cann) said he would not agree to give him anything, and have it put ■down in writing, but he might come there and go to work on the farm as he had done. He would board him. He might have all he made on the farm except one field. That Harrison Cann had never done as much for him as his daughter Ivaie had. That he had paid money for Harrison, bought him clothes, and that Harrison had been working the most of the time for himself. Other things were said by him. His exact words I do not remember, but he left me under the impression that his son John was a better boy to him than his son Harrison.” The witness further testified that he reported to Harrison his father’s reply. This is the testimony of two uncontradicted witnesses, acting in the capacity of agents for the plaintiff. . And they certainly show that Jacob ■Cann had no expectation of making compensation to- Harrison for his services, and this fact was communicated to him; and if he had any right of suit at that time he should have brought it in his father’s lifetime. James D. McCool testifies that in the month of February before his death he met with Jacob Cann, when “he commenced talking about his family and children.. He said that he never intended to make a will, for, said he, ‘Tip, my son, is so damned contrary. He will work for a while,’ he said, ‘then lounge about, and T have to keep him and his stock, and I consider him a bill of expense to me; while my girls are at home, working for the family, all the time, and I just think the laws of my state -can make a better will than I can.’ ” This statement is not properly admissible testimonjq except as a mere circumstance, in a case of this kind, involving so many grave doubts.
Taking the evidence as a whole, it is certainly a matter of impossibility to pronounce the controverted writing to be a genuine paper; but, the Court being of the opinion that neither the Circuit Court nor the commissioner has yet passed [148]*148upon the plaintiff’s claim for compensation independent of such writing, and that there is evidence tending to show his-right to- maintain his suit on a quantum meruit for such compensation, and that the allegations of the bill are sufficient therefor, the decree in this case is reversed, and the same is-remanded to- the Circuit Court, with directions to recommit the same to a commissioner thereof, for the purpose of ascertaining, if any, what amount is legally due the said plaintiff from his father’s estate for services rendered from the time he became of age until the death of his father, and that said case be further heard and determined according to the rules of law and equity.