17 S.E.2d 790 | W. Va. | 1941
John A. Boone and William T. Boone brought this suit in equity in the Circuit Court of Greenbrier County against Walter H. Boone, Myrtle Boone Pool, Thomas Boone, as executor of the wills of R. H. Boone and Sallie R. Boone, respectively, and others, for the purpose of subjecting the real estate of which R. H. Boone and later Sallie R. Boone died seized to the payment of the former's debts, including one evidenced by a note in the principal amount of $2,600.00, bequeathed to plaintiffs by their mother, Tola A. Boone, the payee. From a decree sustaining exceptions to the commissioner's finding in favor of plaintiffs' claim and decreeing that said claim was barred by the statute of limitations and is not a valid and subsisting lien against said real estate, this appeal is prosecuted.
On April 9, 1926, R. H. Boone executed and delivered the note, upon which plaintiffs' claim is based, payable one day after date to the order of Tola A. Boone. He died testate in 1933, leaving all of his property, subject to his indebtedness, to his wife, Sallie R. Boone, who died the following year, leaving by will the greater part of her estate to a son and a daughter, the defendants Walter H. Boone and Myrtle Boone Pool. Both estates were referred to J. E. Bass, a commissioner of accounts, who fixed a time and place when and where claims against the estates might be presented, examined and allowed, and published notice in accordance with Code,
On July 2, 1936, Tola A. Boone brought a suit in equity in the Circuit Court of Greenbrier County against Thomas Boone in his own right and as executor of the estate of R. H. Boone and others, for the purpose of subjecting decedent's real estate to the payment of debts. In her bill of complaint, she asserted the allowance of the claim by the commissioner of accounts and confirmation by the county court. Because of procedural defects that suit was dismissed on August 8, 1936, without prejudice and with leave to institute a new suit.
Tola A. Boone died in Kentucky on December 17, 1936, leaving a will in which she devised and bequeathed all of her property to her two sons, the plaintiffs herein. Her will was admitted to probate in Kentucky on December 28, 1936, and on May 11, 1937, by proper authenticated copy, admitted to probate and record in Greenbrier County.
In this suit plaintiffs filed a bill of complaint and later an amended bill. In the former pleading they allege the allowance of their claim by the commissioner of accounts, and in the later pleading aver it is based on the note of 1926, in which their mother, Tola A. Boone, was payee.
Myrtle Boone Pool filed an answer and cross-bill, in which she averred that, until the present suit was instituted, she had no knowledge or notice of any kind that the estates of R. H. Boone and Sallie R. Boone had been, or were ever referred to a commissioner of accounts, or that the commissioner had made up his report therein; and that no notice was given by the commissioner as required by law. She further charged that neither plaintiffs, their mother, Tola A. Boone, nor any of them, nor any one for them, presented to or filed with the commissioner of accounts a claim against the estate of either R. H. Boone or Sallie R. Boone; that if the claim was allowed, such allowance was void; and that if a note dated April 9, 1926, was ever given, as plaintiffs allege, it is barred by the statute of limitations. This pleading contains a prayer that the accounts of the executor and report of the commissioner of accounts be surcharged and falsified. as to the matters alleged, and that the order of the county *700 court purporting to approve the alleged Tola A. Boone claim be decreed null and void, set aside and vacated.
From this record it is quite apparent that unless the filing by the executor of the list of creditors, which included Tola A. Boone, served to toll the statute of limitations, it is barred because both this and the Tola A. Boone suit were instituted after the expiration of the ten-year statutory period. Under Code,
But counsel say that the commissioner failed to mail notices to plaintiffs' mother, as provided by Code,
Construing Code, 44-2, as a whole, we think that Sections 5 and 18 thereof are controlling of this case.
Section 5 provides that, "Every claim against the *701
estate of a decedent shall be itemized, accompanied by proper vouchers, and verified by the affidavit of the creditor stating the character of the claim, whether open account, note, * * * and the amount thereof, and from what date and on what items interest runs and at what per cent per annum, and stating further that the claim is just and true, and that the creditor, or any prior owner of the claim, if such there was, hath not received any part of the money stated to be due, or any security or satisfaction for the same, except what is credited." It further provides that, "* * * vouchers for a * * * note * * * shall be the instrument itself, or a true copy thereof, verified by the commissioner * * *." The foregoing requirements of the statute are mandatory. To the effect that statutes which require claims against a decedent's estate to be presented within the time specified by published notice to creditors, and, if founded on a written instrument, to be accompanied by a copy of such instrument, are mandatory, seeState of Montana, etc., v. District Court, etc.,
The case of Davis v. Halstead,
The first sentence of Section 18 provides, "After preparing his report of claims the commissioner shall give notice thereof, either verbally or in writing, delivered personally or by mail, to all parties interested or their attorneys, and hold the report and the evidence taken in connection therewith in his office for ten days for the examination of parties interested." The foregoing section also provides the right to file exceptions, within the said ten-day period, before the commissioner; and, in addition, the right to file further exceptions before the county court between the time of the return of the commissioner's report to said court and its action thereon. Neither the order of the county court, the commissioner's report nor the record before the county court discloses any compliance with this statute. Therefore, defendants say, and they are amply sustained by the record, that they had no opportunity to except to the report. They further say the order confirming the report did not become final, subject to appellate review, under Code,
Our position that Sections 5 and 18 are mandatory finds support in the Revisers' Note appearing at the heading of Code, 44-2: "The sections of this article, except 21, 22, 23 *703 and 25, are new. They provide a new method for the reception and disposition of claims against estates of decedents. This new method is designed to relieve personal representatives of the great responsibility and liability that former laws imposed on them; to relieve distributees of the hardship of giving refunding bonds; and to furnish an expeditious and more modern means, under judicial guidance (as far as constitutional restrictions permit), of closing up estates."
We think, therefore, plaintiffs are precluded from a successful maintenance of this suit, unless the county court's order should prevent defendants from having an inquiry made into the proceeding had before the commissioner. Notwithstanding what has been said, plaintiffs assert that for the reasons stated defendants are precluded from making any attack on the court order. If county courts were of general jurisdiction and the allowance of plaintiff's claim and the confirmation thereof a judicial act, beyond legislative supervision, its order confirming the report would stand as an impregnable wall against the instant attack. Slater v. Melton,
Though formerly county courts had unlimited jurisdiction, their jurisdiction was clearly delimited by amendment to the Constitution made in 1880. Thereby they became, to a large extent, courts of limited jurisdiction. What powers they now have are prescribed by Section 24, Article VIII, West Virginia Constitution. Mayer v. Adams,
In saying that county courts have general jurisdiction of the settlement of the accounts of fiduciaries, we mean only that once jurisdiction has been attained of both the subject matter and parties, it is unlimited. But the constitutional delegation to county courts, as to the settlement of fiduciary accounts, is tersely stated. Section 24 contains no direction as to the procedure to be followed in the settlement of estates in county courts. In fact, it does not expressly delegate to or withhold from the legislature the power to enact laws providing for an orderly *705
method of determining the settlement of estates. Quite often the courts of this state of unlimited jurisdiction, both this court and the circuit courts, have been subjected to legislative supervision. A few of many examples are the statutes providing for notices of motion for judgment on contracts, Code,
Because the county court's order contains no express adjudication of the Tola A. Boone claim, plaintiffs, for the purpose of avoiding the effect of the statute of limitations, rely upon the commissioner's report solely for the purpose of establishing that the claim was included in the list filed by the executor and allowed by the commissioner. This position, to be successful, would have required the circuit court to consider only the part of the report favorable to the plaintiffs without considering the report as a whole, which, as suggested, discloses a noncompliance with the provisions of the very statute under which they seek to uphold their claim. Under these circumstances, we are of opinion that the county court's order is open to the attack made upon it in this suit. We are not, under the present state of facts, required to, and, of course, should not, decide what our decision would be if the order of the county court expressly adjudicated plaintiffs' claim, and had recited compliance with the statute in question.
As we view this case, the claim was never proved before the commissioner nor determined in the county court, and therefore it is barred by the statute of limitations and was properly disallowed by the circuit court's decree. The decree did not provide for the dismissal of the bills of complaint. This, of course, was proper for the reason that this case is to be distinguished from the cases of Burdett, Guardian v. Cain,Admr.,
We are therefore of opinion that the decree of the circuit court, in so far as it invalidates plaintiffs' claim *707 should be, and the same is, affirmed. We do not decide as to the other matters contained therein, as they are not embraced in this appeal.
Affirmed.