47 W. Va. 217 | W. Va. | 1899
Lead Opinion
On the 27th day of April, 1878, James M. Campbell, of Butler, Hancock County, West Virginia, made his last will and testament, and appointed his brother, George W. Campbell, and his son-in-law, E. A. Freshwater, executors thereof, and on December 1, 1880, he added a codicil thereto. After the death of said James M. Campbell, said executors qualified, and gave bond, and took upon themselves the duties attending the administration of said estate, and continued to act as such executors jointly until some time in the year 1890, when said George W. Campbell died, and R. H. Campbell and Howard N. Cámpbell were appointed and qualified as his executors. After the death of said George W. Campbell, nearly all of the business connected with the settlement of the estate of said James Campbell was transacted by said E. A. Freshwater, surviving executor of said last will and testament. On the' 13th of December, 1883, said George W. Campbell and E. A. Freshwater made a settlement of their accounts as such executors before a commissioner of the county court of Hancock County, finding a balance due said estate as- of September 17, 1883, of one thousand, three hundred and
The first error assigned and relied upon . by the appellant is claimed to have been in the action of the court in its decree of November 15, 1894, overruling appellant’s demurrer to the plaintiff’s bill: First, because the settlement made in 1883 by appellant and his co-executor was regular, and regularly confirmed, and, having remained un
Rehearing
ON REHEARING.
After hearing the arguments, I am led to the conclusion that the plaintiff is entitled to a construction of the will, and especially the fifth clause thereof, in pursuance of her prayer asking therefor. The cardinal rule in construing a will is to seek from the entire instrument the intention of the testator. The law is stated thus in Hinton v. Milbarn's Exr's, 23 W. Va. 166: “In the construction of a will the intention of the testator is to be ascertained by taking the whole will together. * * * The manifest intention must have effect, unless some rule of law is violated thereby.” And in Couch v. Eastham, 29 W. Va. 784, (3 S. E. 23), this Court held that: “When the language of the testator is plain, and his meaning clear, the courts’can do nothing but carry out the will of the testator, if it be not inconsistent with some rule of law.” Now, when this will is examined, it is found that the testator, after providing
It is also claimed that the court erred in decreeing that the executors of G. W. Campbell recover against appellant such sum, not exceeding two thousand one hundred and forty dollars and seventy-eight cents, as they might pay of the amount recovered against them and appellant, there being no allegation in the bill, and no proof warranting such recovery, on the ground that there can be no decree between co-defendants unless the equities between the defendants arise out of the pleadings and proofs between the plaintiff and defendant. The proof in this
The only remaining error is in regard to the commissions which the commissioner refused to allow the executors, which action was confirmed by the court. The statute being so imperative that commissions shall not be allowed where personal representatives fail to make their settlements in proper time, we cannot disturb the decree in that respect, and for these reasons the same is affirmed.
Affirmed.