52 W. Va. 263 | W. Va. | 1902
Calvin Potts died in October, 1896, intestate, leaving certain lands and but little personal property. His brother, John Potts, being sole heir at law, to whom his real estate descended. John B. Potts was duty appointed administrator of said Calvin. In December, 1896, John S. Hanly claiming to be a creditor of the said estate, suing on behalf of himself and all other creditors of said decedent,- filed his bill in the circuit court of Mason County against John B. Potts, administrator, and John Potts, defendants, alleging that the personal estate of said decedent was wholly insufficient for the payment of the debts of Hie estate and praying that the -cause be referred to 'one of the commissioners of the court, to ascertain and report the indebtedness of the estate; to whom owing; the respective priority of the debts; how evidenced; to settle the accounts of the administrator; and to- ascertain and report of. what real estate decedent died seized; and that so much of said real estate as it might be necessary for the purpose, be sold to pay the debts of plaintiff and the other creditors of the estate. The defendants, John B. Potts, administrator, and John Potts, filed their demurrer to the bill, which was overruled, and John Potts filed his answer to which answer plaintiff replied generally. The cause was referred to commissioner Ií. R. Howard, who was directed to state and report an account showing the real estate of which Calvin Potts died seized and possessed and the liens and priorities thereof, and what other debts besides liens, if any, existed against the estate; in whose favor, and the amount thereof; what personal property said Potts owned at'the time of his death, and what disposition had been made of it; the total amount of all valid and subsisting indebtedness against the estate of said decedent and the order of priority of payment if airy; to state and settle the .accounts of John B. Potts, the administrator, and such pertinent other matters as the parties might request. The commissioner made his report, which was filed on the 26th day of January, 1898. The commissioner
First. Because there is error iir the said report in this — that Mollie Potts, to whom said commissioner allowed in said report as indebtedness against said estate the sum of five hundred and seventeen dollars and fifty cents and forty dollars and seventy-one cents interest, total, five hundred and fifty-eight dollars and twenty-one cents, having filed an account against the estate of Calvin Potts, deceased, in the words and figures following:
CALVIN POTTS TO MOLLIE POTTS,
1892. Dr.
To one yoke of oxen sold to Potts, wliicli he sold to E. h. Neale .$ 85.00
To young cattle sold to Potts and by him sold to E. L. Neale . 115.00
1896.
To sheep sold to William Blain, amounting to $54.00, of which Mollie Potts was entitled to one-half. 27.00
To lambs sold Wesley Cobh, amounting to $63, of which Mollie Potts was entitled to one-half. 31.50
To hogs sold to E. L. Neale, amounting to $50.00, of which Mollie Potts was entitled to one-half. 25.00
To cattle sold to William Blain, amounting to $97.00, of which Mollie Potts was entitled to the proceeds of two steers at $11.00 per head. 22.00
1894.
To hogs sold to Hiram Brown, amounting to $68, of which Mollie Potts is entitled to one-haif. 34.00
1896.
Oct. To cash loaned used to pay. 40.00
To board from 1884 to October, 1896, including washing, making and mending clothes, 142 months, at $10.00 per month.. 1,420.00
1896.
To one note made by Calvin Potts to G. W. Potts, Sept. 11th, 1884, due at one day..’. 52.00
To interest on same.... 40.56
To note made by Calvin Potts to G. W. Potts, April 31st, 1881, due 12 months after date. 238.00
To interest on above.¡. 218.96
Total .$2,966.52’
The said commissioner allowed her thereon the sum of five hundred and seventeen dollars and fifty cents as aforesaid, without specifying upon which of tire fourteen items thereof such allowance is made, and without showing which of said items are disallowed and rejected; and for this reason these defendants and each of them, ask that said report ho recommitted to the same or another commissioner, with direction to rehear this cause as to the claims filed by said Mollie Potts. Because the account of two hundred and seventy dollars and sixty-five cents, allowed in said report in favor of John S. Hanly is part of a store account, and each of the first one hundred and thirty-two items thereof is for an article charged in said store account and purporting to be for merchandise from the store of said Hanly, and none of them appear to have been made within three years preceding the institution of this suit, and these defendants, and each of them, relied upon the statute of limitations before said commissioner as to said one hundred and thirty-two items, amounting to three hundred and ninety-two dollars and eighty-eight cents, and required said commissioner in writing to disallow them, because they were barred by said
These defendants, and each of them also rely upon and here plead the five year statute of limitations as to the first forty-four items, and each of them, in said store account, amounting in all to one hundred and twenty-two. dollars and thirty cents, and assigns the allowance of same, and each of them as error in said report. The record contains three hundred and twenty-five pages of testimony, the greater part of which is concerning the claim made by Mollie Potts, and is very conflicting. There is evidence tending to prove and establish the several items of said account, .except the item of “forty dollars for cash loaned.” The principal part of the testimony on the claim of Mollie Potts is an attempt to establish that item for “Board from 1884, to October, 1896, including washing, making and mending clothes, one hundred and forty-two months at ten dollars per month, one thousand four hundred and twenty dollars.” Calvin . and Mollie Potts were cousins; neither of them ever married. The evidence shows that they had lived together, at Mollie’s house for the past forty years or more, up to the time of the death of Calvin, except a few months in the early ’90’s, when they had a little falling o-ut, and he left and went elsewhere to board but returned and remained with her. They seemed to have everything in common, except part of the stuck; they had sheep and hogs which they owned in partnership; but they owned both sheep and hogs, cattle and horses separately, and individually. The evidence shows that they ate at the same table, lived in the same house and both furnished, to a greater or less extent the supplies for the table. It does not appear that they ever had a settlement, or that either of them ever furnished anything for their living expecting to charge the same to the other,
The exception to -the commissioner’s report because he failed to show in said report which items of the account hied by said
The third assignment is that the court erred in overruling defendants third exception to commissioner’s report, made to the allowance therein of a store account duo plaintiff Hanly, amounting to the sum of two hundred and seventy dollars and sixty-five cents, because the same was barred by the statute of limitations.
The fourth assignment is in confirming said report of commissioner as to the store account of Hanly and the interest thereon, making a total of two hundred and ninety-one dollars and ninety-two cents, and decreeing the same to be paid, and the sale of the real estate to pay it; while the fifth assignment is in overruling the fourth exception to commissioner’s report and allowing as indebtedness against said estate the 'note for two hundred and four dollars and thirty-one cents and, eighty-five dollars and seventy-five cents interest thereon, total two hundred and ninety dollars and five cents, in favor of plaintiff Hanly, contrary to the law and the evidence in the case. Hanly and Calvin Potts had a settlement of their accounts and the note was given on tbo 9th day of February, 1891, by Calvin Potts to Hanly, payable one day after date. Potts did the principal part of his dealing with Hanly and kept a running-account with him, after said note was given, said account began on the 18th day of March, 1891, and ran on up to October, 1896, showing purchases and items of account due from him to Hanly in almost every month during that time, and during the same time when Calvin had any produce to sell he let Hanly have it from time to time, and the same was credited on Hanly’s
In section 36, first Barton’s Law Practice, at page 99, it is said: “If the account sued upon contains credits, either in money or anything .else, or if payments in money or other things shall be proved to have been made, they will be applied, in the absencG of any special application by the parties themselves, to such portions of the account, if any there be as would otherwise be barred by the statute.” Wood on Lim. of Actions, 110; Genin v. Ingersoll, 11 W. Va. 549. Waterman on Set-off, section 6, gives the distinction between payment and set-off, he says: “Payment is by consent of the parties either express or implied, appropriated to the discharge of a debt.” These payments were made by Calvin Potts at different times during a period of some four years, all entered upon the books of his creditor as credits on his current account, and it must be presumed that he knew how the price of the produce furnished by him was being applied. In Kennedy v. Davisson, 46 W. Va. 433, (Syl. pts. 3 and 4), it is held: “The distinction between payment and set-off is that a payment is, by consent of parties,
In Walker v. Burgess, 44 W. Va. 399, (Syl. pt. 1), it-is held: “A statute changing the period of limitation will not be applied to antecedent transactions, unless its letter or necessary intent demand a retroactive construction.” This disposes of the
The sixth assignment is in confirming the report allowing the said note of two hundred and ninety dollars and six cents, including interest.
• The seventh assignment is that the court erred in overruling the exception to the report because the commissioner allowed as indebtedness against the estate twenty-one dollars and eighty-four cents, in favor of A. J. Fowler. This is a claim for ser-vises rendered and seems to bo fairly well proven, and no good reason is shown for its disallowance, the same not being mentioned in the brief of appellants’ counsel, the commissioner having passed upon the evidence and same being confirmed by the court, the report should not be disturbed by. this Court without good reason therefor. ■ ■
The eighth assignment is that the court erred in overruling the demurrer of defendants to plaintiff’s bill, which bill contained sufficient allegations to give the court jurisdiction, alleging the insufficiency of personal assets to pay the debts and the necessity of a resort to the real estate of the decedent to discharge said indebtedness. This assignment does not seem to be relied upon. The suit was brought within about two months after the death of the intestate. In Poling v. Huffman, 39 W. Va. 320, it is held, (Syl.) : “A bill by a creditor or creditors to discover assets and enforce a debt or claim against the estate real and personal in the hands of the heirs or devisees is not de-murrable because filed within six months of the date of the appointment of the personal representative of such estate,” The demurrer was properly overruled.
The ninth assignment is that the court erred in entering the decree of February 16, 1897, referring cause to Commissioner Howard because the defendant, John Potts had filed his answer
The tenth assignment is that the court erred in decreeing a sale of the real estate of Potts. For the reasons herein given, the decree will be reversed, only in so far as it provides for the payment of the claim to Mollie Potts, and as to the item of five hundred and eighty-one dollars and ninety-eight cents decreed to plaintiff, John S. Hanly, the same will be reduced by the said sum of forty-four dollars and forty-two -cents, the aggregate of the items barred by the statute of limitations, and as so reduced and amended the same will be affirmed as. to said, item, and in all other respects the decree is affirmed, and the cause is remanded with directions to refer the cause back to Commissioner Howard, or some other commissioner of the court, to report upon the claim of Mollie Potts, the amount of which to be ascertained according to the principles laid down in this opinion. The decree of sale to be executed after the coming in of said report and ascertaining the true amount of this claim of Mollie Potts.
Affirmed in pari. Reversed in part.