33 W. Va. 476 | W. Va. | 1890
Suit in equity brought in February, 1888, in the Circuit Court of Greenbrier county, by Mark L. Sports and John A. Preston, executors of John W. Dunn, deceased, against Lizzie T. Renick and others, to construe the will of said Dunn, and for other purposes. The said Dunn died in October, 1883, and his will was duly probated in said county in November, 1883, atwhich time the executors duly qualified. There is no controversy in respect to any of the provisions of the will except the eighth item, which is as follows:
“Item 8th. I direct that my executors shall, at such time and in such manner as they may judge will promote such sale for the best price, under and with the advice and counsel of my sons H. C. Dunn and John R. Dunn, make sale of my Kanawha lands, West Virginia, and the same may be sold under such direction and advice in the whole or in parcels as may seem at the time best and most advisable; and I direct my executors, out of the first proceeds arising from such sale, to pay off any indebtedness of my son Henry C. Dunn upon which my son John R. Dunn is his security, not exceeding in the aggregate the sum of $3,000.00 or thereabouts — my. object in this devise being to provide for the payment of the debts of Henry O. Dunn upon which his brother JohnR. Dunn may be bound as his surety, and thereby relieve said John R.Dunn from such burden of liability; and, secondly, out of such Kanawha land fund my executors- shall pay $7,000.00 to Sallie P. Dunn, the wife of my son Henry C. Dunn, who shall hold the same in trust for the support, maintenance, and comfort of the family of said Henry C. Dunn and Sallie P. Dunn,and the education of their children ; and. upon the death of the said Henry C. Dunn and Sallie P. Dunn any sum or sums remaining from such fund shall go to and be equally divided between children begotten of. their marriage, or the survivors of such children — my purpose being in this devise to provide that there shall be paid on account of my son Henry 0. Dunn, and for the purposes set out*478 and expressed in this item of my will, the-sum of ten ' thousand dollars ($10,000.00) in the aggregate; first, such sum, say about $3,000.00, as will be sufficient to pay off any indebtedness of said Henry C. Dunn upon which John R. Dunn is security, and then, after such indebtedness shall be discharged and paid off, then the residue of said $10,000.00 shall be paid by' ray executors, say $7,000.00, to the said Sallie P. Dunn, wife of Henry C. Dunn, for the uses, etc., set out in this (8th) item of my will; and it shall and may be lawful for the said Sallie P. Dunn, with the advice and consent of her friends, to invest any portion or the whole of such fund so paid to her in real estate, to be held by her in trust for the same purpose, and to vest at the death of herself and’ her husband in their children, in like manner and form as is heréin provided for the personal fund.”
’By the tenth item it is provided that, after the payment of the $10,000.00 according to the eighth item, the executors are to pay $735.00 to Kate V. McNeel, and then divide the residue of the estate into four equal parts, and pay one of said parts to Lizzie' T. Reuick, one to Kate V.’McNeel, one to John R. Dunn, and one to Sallie P. Dunn, wife of Henry C. Dunn; the said Lizzie T. Renick, Kate V. McNeel, John R. Dunn, and Henry C. Dunn being the only children and heirs at law of the testator. The executors are expressly authorized' to convey all the real estate they may sell under the provisions of the will, and tile testator requests that no security shall be required of them as his executors.
The cause was referred to a commissioner to report a settlement of the account of the executors, the amount of the debts of Henry 0. Dunn for which John R. Dunn is security, and any other matter required by any party.' The commissioner made his report, showing that the estate was indebted to the executors a balance of $711.83 as of January 10,1888, and that the débts of Henry C. Dunn for which John R. Dunn is surety amount, as of November 5,1888, to $2,076.05; including a judgment in favor of Jesse J: Livesay amounting to $360.10. Under the general provision of this reference, the commissioner made the following special statements : At the request of Jesse J. Livesay he stated that in October, 1876, the said Livesay recovered a judgment for $621.00
Jesse J. Livesay excepted to the report, because the commissioner refused to allow his said judgment of $621.00. Henry C. and John R. Dunn and others excepted to the allowance of either of the said judgments for $360.10 and $621.00 in favor, of said Livesay, on the ground that each of them is barred by the statute of limitations. And JohiiR. Dunn and Kate Y. McUeel excepted to the report because it allows the executors credit for taxes paid on the Kanawha farm, and does not set-off the rents of said farm against the interest on the legacy of Sallie P. Dunn.
On May 2, 1888, the court entered a decree in which it decided and adjudged that, according to the true construction of the will of John R. Dunn, the legacy of $10,000.00 in favor of Sallie P. Dunn bears interest from the death of the testator ; and, all the children and legatees of the testator having by their pleadings in the cause insisted upon a speedy sale of the Kanawha farm, the court in said decree directed the executors to sell the same’ at public auction. Hnder this decree the executors offered the farm for sale at two different times and places, but failed to make a sale on the first occasion for want of bidders, and on the second it was bid off by John R. Dunn for himself, Lizzie T. Renick, and Kate Y. McUeel at the price of $16,000.00, but they failed to pay any money or comply with the terms of the sale.
On November 17,1888, the court entered a decree by which
The appellants contend that the court erred in deciding that the legacy of $10,000.00 to Sallie P. Dunn should bear interest from the death of the testator. It is apparent from the whole will that the testator intended to make his four children equal in the benefits of his estate, substituting the wife of his son Henry, as trustee for his family, in the place of said Henry. He in his will refers to the fact that he had during his' life made advances to his two daughters and their husbands, and that such advances, added to the sums given them by the will, amount to as much as he can give them in justice to his two sons and their families. Uearly the whole of the provisions made for his other children came into their possession and enjoyment either before or immediately upon the death of the testator, and therefore, in order that the equality intended by the testator and manifested by his will should be preserved, the legacy to the wife and family of his son Henry should bear interest from the death of the testator. That such was the purpose of the testator is apparent, it seems to me, from the will itself The substance of the eighth item, hereinbefore given in full, is that Sallie P. Dunn, as trustee for Henry and family, substituting the trustee for Henry, shall be paid .$10,000-00 out of the proceeds of the Kanawha land, subject to the right of John'R. Dunn to be indemnified as the surety of Henry out of said sum to the extent of $3,000.00. The object clearly was to give Henry, or those representing him, $10,000.00 as his equal share of the estate; but in the event that John R. should be com
The next and most important question in this cause is, who, if any one, should be charged with or made accountable for the rents and profits of the Kanawha farm ? This farm has beeu occupied by Henry C. Dunn and his family ever since and for many years before the testator died, without paying any rent, or any contract to pay rent. It is very plain to me that the executors are not liable for the rents. The legal title was not devised to them. They were simply given a power of sale, without any interest or control except the mere naked authority to sell and convey the land. A devise of land to be sold by executors confers a naked power, and does not give any interest. In all cases when the executors have only such naked power or authority to sell, the freehold descends to the heir, who is entitled to the rents and profits until the sale. Pow. Dev. 292, 292; Bell v. Humphrey, 8 W. Va. 1, 15; Mosby v. Mosby, 9 Gratt. 584 500.
It is contended however, by the appellants that the legacy given to Sallie P. Dunn should be charged with the rents
The appellants insist that the Circuit Court erred in crediting the executors with the taxes paid by them on the Kanawha farm after the death of the testator. As' before shown, the title to this farm descended to ánd vested in thé heirs, subject to a naked authority in the executors to sell it in the manner prescribed by the will. The heirs — that is, the four children of the testator' — were liable, as the owners, for the taxes on the farm. They failed to pay them, and allowed the land to be returned delinquent, and the executors, out of their own funds, paid the taxes to prevent a sale and possible loss of the farm. It is unnecessary to decide whether or not they, having a naked power to sell, were under a duty to pay the taxes in order to preserve the estate, so as to enable them to sell as required by the will. It is enough.to say they did not act officiously in the payment of these taxes. If it was not their duty to preserve the farm by paying the taxes, it is certain the heirs can not justly complain that they, in good faith and under a belief that it was their duty to do so, did what the heirs neglected to do. The payment of these taxes was for the benefit of the estate; and those entitled to the residuum being those whose duty it was to pay them, it is entirely equitable that the executors should be credited for the amount they paid, as against the residuary legatees for whose benefit the payment was made.
The only remaining assignment of error is that of Jesse J. Livesay, who contends that the court erred in overruling his exception to the commissioner’s report, and disallowing his judgment for $621.00. The facts show that this judgment was rendered by the Circuit Court of Greenbrier county on June 12, 1877, on a bond executed by Henry C. Dunn and John R. Dunn, the latter being the surety of the former;
For the foregoing reasons, the decrees of the Circuit Court are affirmed, but without prejudice to the right of any party to apply to the Circuit Court to ascertain whether, according to the principles announced in this opinion, any part of the support of the family of Henry C. Dunn was so derived from the Kanawha farm as to make the same a proper set-off against the legacy of Sailie P. Dunn and, if so, to allow the value thereof to be deducted from the interest on said legacy.
AlTIRMED.