46 W. Va. 397 | W. Va. | 1899
This case was here before, and the facts are exhaustively and elaborately stated in the laborious and lucid opinion of Judge English found in 37 W. Va. 305, (16 S. E. 675). They will, therefore, not be repeated here, except in so far as may be necessary to a proper determination of the question now presented. On the first Monday in Au: gust, 1873, the heirs and devisees of Mathew Holt, deceased, in the circuit court of Gilmer Oounty, filed their bill of complaints against J. F. W. Holt, as sheriff of Gilmer County, administrator de bonis non with the will annexed of the personal estate of the said Mathew Holt, deceased, and surviving partner of the late firm, composed of himself and decedent, praying a settlement of his accounts ,in both ca!-ipacities. The defendant answered, claiming that he, was
After the death of the principal litigant to a suit, it would certainly be inequitable and oppressive to confirm a commissioner’s report, made during his lifetime, without affording those whose property and rights will be adjudicated and affected thereby an opportunity to object to the same; and such opportunity can only be afforded in a proper way by a complete recommittal of the whole case or matter in dispute. This may occasion cost or delay, but justice should not be weighed in the balance with a money consideration. In the cause up until the death of J. F. W. Holt there had been entered no appealable or conclusive order, but the whole matter was in the breast and under the control of the court. At the time of the reference and report
In the first amended bill the plaintiffs set up and rely upon the following contract, which, because of its importance, is here copied in full: “We, M. Holt and J. F. W. Holt, have this day agreed upon the terms and statements hereinafter mentioned in relation to the partnership existing between us since the year 1839 or ’40 under the name and style of M. and J. F. W. Holt. The said M. Holt in the commencement of the partnership contributed the sum of $2,538.37 in cash and bonds; the said J. F. W. Holt contributed the sum of $3,286.97, embracing the farm at the mouth of Cedar creek, on which the said Holt now lives. We, the said partners, M. Holt and J. F. W. Holt, have commenced a settlement, and J. F. W. Holt now holds in his hands notes and bonds amounting to the sum of $15,-616.80, and property amounting to the sum of $1,150.00, and the said notes and bonds are all recorded in a book, and also the said property, and a copy of the same furnished to the said M. Holt. Now, the said notes, etc., are all to De accounted for in the final settlement of the .said partnership, and there is now in the hands of the said M. Holt notes and bonds amounting to the sum of $6,020.42, and constable’s receipts for claims put out for collection,
The questions of fraud raised in the proceedings and determined by the court are so dependent on the amount the plaintiffs show themselves finally entitled to recover that it would be proper to pass upon them now, and it may hereafter prove unnecessary to do so. As to the account of the administrator, John M. Holt, the decree is in the following words, to wit: “And the court having sustained certain exceptions of the plaintiffs and of the defendants to the report of the settlement of the account of John M. Holt, administrator of the estate of J. F. W. Holt, deceased, the items of which appear upon a paper here filed, marked 'John M. Holt, administrator, October 1st, 1896,’ and it appearing that there is due from the said John M. Holt, as such administrator, the sum of four thousand four hundred and ten dollars and sixty-six cents as of the 1st day of October, 189G,” and this sum of four thousand four hundred and ten dollars and sixty-six cents is decreed against the administrator, while the commissioner’s report shows due the administrator from the estate the sum of four thousand six hundred and ninety dollars and fifty cents, a material difference in some manner, not shown on the face of the decree, arrived at by the court. The decree fails to indicate which exceptions were sustained and which overruled,
For the foregoing reasons the interlocutory decrees of
Reversed.