61 W. Va. 315 | W. Va. | 1907
Many years ago C. J. P. Cresap, of Randolph county, died testate, and Agnes C. Cresap, the executrix of his will, filed a bill in equity for the purpose of settling up his estate, and later filed an amended and supplemental bill, claiming to be the sole beneficiary under the will, and asking a construction thereof. The circuit court held the will to vest in her the title to the whole of the testator’s estate, both real and personal. Upon appeal this Court, as will appear from the case of Cresap v. Cresap, 34 W. Va. 310, construed, the will, reversing the decree of the circuit court, and clearly settling the rights of the parties litigant and fixing their respective interests. The will was construed to give the widow, Agnes C. Cresap, the power to sell and convey the estate, both real and personal, as to her seemed proper, first, for her support and maintenance, according to her condition in life, and second, for the benefit of the estate; and at her death of the remainder she was given the iipwer to dispose of one-fourth; Nannie I. Evans, her niece, was to have one-fourth, and the remaining one-half was given to Gustavus J. Cresap, the brother, and Mary B. Cresap and Rachel R. Cresap, the sisters of the testator; and further, if Agnes C. Cresap died without disposing of the one-fourth interest of which she was authorized to make disposition, then that it should pass to. and be divided between his said brother, Gustavus J. Cresap, and any unmarried sister or sisters.
Upon the cause being remanded to the circuit court, the plaintiff, Agnes C. Cresap, filed an amended and supplemental bill, setting up that shortly after her marriage, and in the life time of her husband, she furnished to him about four thousand dollars, twenty-five hundred dollars of which he invested in real estate known • as the Burkett property, and without her knowledge took the deed in his name, and
Upon the return of the cause to the circuit court the second time, the commissioner executed the decree of reference, and reported, among other matters, that upon a settlement
It is contended by counsel for the appellee that the first item has been fully adjudicated by the decree overruling the exceptions to the commissioner’s report and confirming the same, wherein eight hundred and twenty-five dollars was reported as a reasonable allowance for the annual support,. maintenance and medical attention of Mrs. Oresap. The report upon -which this decree is predicated and the decree itself only fix this as a sum reasonable for the support and, maintenance of the widow. This she asked to be ■ done, but it cannot be said that by this decree if the widow fails to use or consume this amount of property, she would be entitled to collect that portion which she did not consume. Nothing was decided as to when such sum should be collected. It was not mentioned in the whole proceeding, and the question as to when it was to be charged never arose until after the cause went back the second time.
The question now arises, is the decree of the circuit court right in decreeing in favor of Nannie I. Brown the amount to which she claims to be entitled on account of the allowance for the support and maintenance of Mrs. Cresap. The
It certainly was not the intention of Cresap to give to his widow the right to accumulate a vast estate at the expense of the other legatees when he provided that she should have a suitable maintenance. He meant what the term implies— that she should be supported in a manner suitable to her station in life. As before stated, it appears, leaving out of consideration the amount allowed for her support and maintenance, that the difference between the amount of the estate that went into her hands and that for which she is accounted is about three thousand dollars, which we will' not charge against her, because she being the executrix of the estate, with the power to sell or dispose of any or so much of it as is necessary for her support and maintenance, and she not accounting for this sum, we can presume that it was applied to her support and maintenance. Page on Wills, section 605, note 54; Brunson v. Martin et al., 152 Ind. 111.
The proceeding by which Mrs. Cresap was decreed a specific sum for her support and maintenance was a useless one, inasmuch as by the will of Cresap. the entire estate was charged with her support and maintenance, and she was given absolute control over it during her life, with power to sell any or all of the estate if deemed by her beneficial to it to do so. Why decree to her a sum certain, when she had the right to use the whole of the estate, if necessary for her support and maintenance? But by the action of the court in fixing such sum, she was limited to that amount. She could not consume more than the sum fixed, but if she did not use that sum, she did not thereby acquire the right to charge the estate with that pprtion not used.-
After the return of this cause to the circuit court the first time, an answer was filed by Samuel Woods, setting up that there was in his- possession for collection a largfe amount in notes, belonging to the estate of Cresap, and that in transactions between them, the executrix had been overpaid by himself and John Brannon approximately the sum of five hundred dollars, of which- sum they would be entitled to have reimbursement. The commissioner reported this amount as a charge against the estate, and that Woods would be en-'
The third of the items above referred to is the allowance of five hundred dollars attorney’s fees to Leland Kittle,and the 'ground of exception is that there is no evidence upon which to base a decree in his favor for this amount. As appears from the record, Kittle was attorney for Mrs. Cresap, assisting her in winding up the estate. However, there is no evidence which even tends to show that the amount which was allowed him is a correct charge against the estate. The record is absolutely silent on this point, the .commissioner simply reporting that Kittle is entitled to the amount; but for what services it is charged; when those services were performed, or, if performed, that they have not already been paid for, does not
It is earnestly insisted that the decision of -this Court on the last appeal is erroneous wherein it decrees to Agnes C. Cresap the Burkett house and lot, and the ground of this insistence is that Mrs. Cresap could not renounce the will in part and accept it in part. ' This question in the litigation is res adjudicaba, and we could not, even if we were so disposed, overthrow the decision in this respect. But upon a careful examination of this question, it will be found that the decision, in this respect, is not erroneous. C. J. P. Cresap devised the whole of his property in general terms, without specifying it; It does not appear that he disposed of the Burkett property, or attempted to do so. He never owned the Burkett property, it being paid for out of money belonging to his wife. Therefore, in asking that this property be decreed to her', Mrs. Cresap was not seeking to take in hostility to the will, inasmuch as the property had never been vested in Cresap, he holding the legal title in trust for his wife, but her suit was only for the purpose of acquiring the outstanding legal title.
The appellee, Nannie I. Brown, cross-assigns as error the refusal of the court to allow her. the sum of three hundred and ten dollars and twenty-four cents, which amount was paid to Samuel Woods for attorney’s fees in and about the suit first instituted by Agnes C. Cresap. This sum was reported as a proper charge by the commissioner, but the court sustained an exception to that part of the report. Inasmuch as Mrs. Cresap in the suit in which these services were rendered set up a claim in hostility to the estate, the services were rendered primarily for her, and her devisee is' not entitled to have the estate charged with the fees paid to attorneys in that litigation!
Appellee Nannie I. Brown also cross-assigns as error the refusal of the court to allow her the sum of six thousand one hundred and thirty-four dollars and sixty cents, the balance of the money belonging to Agnes»C. Cresap which it is claimed went into the hands of C. J. P. Cresap, at the 'time of their marriage, and for which he never accounted, it being claimed that the allegations of the supplemental bill in
It is contended on behalf of the appellants that the supplemental bill of Agnes C. Cresap should have been dismissed as wholly unnecessary, and that the revival of the suit in the name of Leland Kittle as administrator of the estate of Cresap, as well as in the name of Nannie I.. Brown as executrix of Agnes C. Cresap, was erroneous. ■ These matters arose after the cause was remanded to the circuit court after the first appeal, and before the second appeal was taken; hence the determination reached renders them res adjudicaba. The only additional pleadings filed after the second appeal, and which can be considered here, were the answers of Nannie I. Brown and the administrators of Samuel Woods. The latter has already been referred to, and in the answer filed by Nannie I. Brown she asks, in substance, that she be substituted a party in the place and stead of Agnes C. Cresap, and have all the relief which had been decreed or might thereafter be decreed to Mrs. Cresap, decreed to her. There were no new parties made by this pleading, there was no objection to it, and we fail to see wherein the court erred in permitting it to be filed.
The decree of the circuit court, in so far as it allowed the claim of Leland Kittle, amounting to the sum of five hundred dollars, and in so far as it allowed to Nannie I. Brown the aggregate amount of thirteen thousand eight hundred and seventy-two dollars and ninety-six cents, with interest thereon to April 12th, 1906, as a charge against the estate of C. J. P. Cresap, deceased, is reversed and said claims disallowed: and in all other respects said decree is affirmed. And this cause is remanded to the circuit court of Randolph coun
Affirmed in part. Reversed in part. Remanded.
I participated in the consideration of this case in conference and concur in its decision, except that I took no part as to that part of the case involving the debt decreed to Judge Woods and my brother, John Brannon.