45 W. Va. 106 | W. Va. | 1898
Joseph S. Brewer, a resident of Green County, Pa., died insolvent, was the owner of a tract of land in Randolph County, which just prior to his death he sold to Omar Conrad for the sum of six hundred dollars. After thé death of Brewer, his executors collected two hundred dollars of the purchase money, and took two notes of said Conrad of two hundred dollars each, payable, respectively, on the 1st day of January, 1892, and 1st day of January, 1893, with interest from the 19th of April, 1891, and con
On the 5th day of May, 1894, plaintiff had the cause remanded to rules, with leave to file an amended bill, making Imri Hunt, Enoch M. Everly, and Omar Conrad parties, and on the 25th of July, 1894, he filed said amended bill, making said new parties, alleging, in addition to the allegations of the original bill, that said Everly finding that the estate of Joseph S. Brewer was wholly insufficient to pay the debts against the same, and knowing of his owning property in Randolph County, came to Randolph, and, after investigation, apparently thinking the chance well-nigh hopeless, assigned his claim without valuable consideration except some verbal agreement as to sharing the proceeds, should anything be realized, to the defendant Imri Hunt, a former neighbor of Everly’s, but then living in the town of Elkins, when said Hunt, knowing of these two purchase bonds owing by Conrad, had the estate cast upon Sheriff Hutton, and then brought his action as before stated; that the answer of Conrad as garnishee was ordered tobe filed with the papers, and an order made requiring him to pay the money to Everly for the use of Hunt, which then amounted to four hundred and eighteen dollars and sixty cents, the sum to be applied as a credit upon his (said Everl'y’s) judgment obtained in that action, which said judgment was rendered on the 26th of January, 1892, for the sum of six hundred and sixty-three dollars and sixty-seven cents, whh interest and costs; that said Conrad paid over the said sum — four hundred and eighteen
The defendants appeared and demurred to the bill which was sustained and the bill dismissed as to defendant Conrad, and overruled as to Hutton, Everly and Hunt, and said defendants were ordered to answer within thirty days. Defendant Hutton filed his separate answer, admitting that he was appointed administrator of the estate of Brewer, and at the same time he was notified that the estate was committed to him as sheriff, to be administered, he was served with summons in the attachment or suggestion case mentioned in the bill, and attended court, and was at the hearing of said case at the January term, 1892, with counsel to assist him in guarding the interests of said estate; that he was present when said order was made directing the said funds to be paid by the said Conrad to the said E. M. Everly for the use of Hunt; that he did not know until some time afterwards that said order was not entered at the time, as he was in court when it was so ordered; that he never had control of said fund, or any part of it, but the court had by its process in said action taken charge thereof before he had notice that he was appointed as such administrator, or said estate was - committed to him as sheriff; that said fund was collected and paid out under the direction of the circuit court of Randolph County,
On the 23d of October, 1895, the cause was heard upon the bill of the plaintiff and exhibits therewith, the separate answers of Warwick Hutton, Imri Hunt, and E. M. Everly to the bill of the plaintiff, and g-eneral replications thereto, and the court dismissed the bill, and awarded costs against the plaintiff,.from which decree the plaintiff appealed, and assigned the following errors: “First. Because it was improper to dismiss said bill without having first required the said administrator to make settlement of- his accounts as such. Second. Because the payment made by said Conrad before he was legally bound to make it, and to a person to whom he was not bound to pay, could afford him no protection against a proper demand made on behalf of the creditors of said estate. Third. Because
Section 25, chapter 85, Code, fixes the dignity and priorities of debts and demands against the estates of decedents, and the following section provides: “No payment shall be made to creditors of any one class, until all those of the preceding class or classes shall be fully paid. But a personal representative who, after twelve months from his qualification, pays a debt of his decedent, shall not thereby be personally liable for any debt or demand against the decedent, of equal or superior dignity, whether it be of record or not, unless, before such payment, he shall have notice of such debt or demand;” and further provisions are contained in sections 29, 30, chapter 87, Code, relative to distribution and disbursement of estates. Parker v. Donnally, 4 W. Va. 648, Syl. point 1: “The personal representatives of a deceásed debtor are not, as such, the debtors of the creditors of their testator or intestate,-within the sense of the statute. They are not liable in the debt, but in the detinet only. The personal estate is in their hands to be administered according to law, and is riot, therefore, the subject of garnishment by the creditors of the estate of the decedent. ” It seems to me, in the light of the statute fixing the priorities of debts and demands against and providing for the settlement of estates of decedents, and of the authorities touching the question, that no debtor of an estate can be attached or summoned as a garnishee. In Thorn v. Woodruff, 5 Ark. 55, the court says, “To subject executors or administrators to this process of garnishment mig'ht destroy the whole operation and intention of our law of administrations. ’We are, therefore, of opinion that an executor or
Appellant insists that Conrad is not protected by the order directing the payment to Hunt, because his obligation was to the Pennsylvania executors, and to them or to Hutton he was bound to make payment until the court, by its judgment, should intervene, and require him to pay it to some one else; that the order to pay it was not in fact entered until July 8, 1892, several months after Conrad had paid the money over to Hunt. “The payment must not have been voluntary. Any payment not made under execution will be regarded as voluntary, and therefore no protection to the garnishee, unless the law authorized the
The demurrer as to defendant Conrad was improperly sustained for the reasons herein stated, but .the bill should have been dismissed as to him at the hearing-, as it is clearly shown that he paid the money with the knowledge, and at least the tacit consent, of the administrator, Hutton. The decree complained of is reversed, with costs against Hunt and Hutton, and the cause remanded for further proceedings to be had to recover from Hunt for the benefit of the estate the money so improperly received by him, and paid him by Conrad, and, in any event, -to be charged to said Hutton as administrator, and to be administered in the manner provided by law, and a settlement of the administration accounts of defendant Warwick Hutton.
Reversed.