12 S.E.2d 514 | W. Va. | 1940
Lead Opinion
Martha C. Swiger died testate, leaving the residue of her estate "to the descendants per stirpes" of such of her brothers and sisters as should predecease her. Pending the settlement of her estate by a commissioner of accounts, a petition was filed with him by Ada M. Hustead, the lawfully adopted daughter of a predeceased sister, claiming the right, as a descendant of the sister, to share in the residue of the estate. Evidence was taken and briefs filed before the commissioner who ruled against petitioner. She presented her claim, with the evidence theretofore taken, to the county court which construed the will in her favor. The personal representatives of Mrs. Swiger appealed to the circuit court where the county court was affirmed, and then appealed here.
Appellants challenge here, as they did initially before the commissioner, his jurisdiction to construe the will.
Constitution, Art. VIII, Sec. 24, confers on county courts jurisdiction to settle the accounts of personal representatives. Code, 44, articles 2 and 3, provide (a) that a county court shall appoint commissioners of account; (b) that the court shall refer a decedent's estate to such a commissioner to determine the claims against it, the shares of the distributees, and any other matter "necessary and proper" for its settlement; (c) that the commissioner shall return to the court a report listing each claim presented, with the evidence thereon, exceptions, and his allowance or disallowance thereof; and (d) that the court shall pass upon the exceptions, if any, "and make its order thereon." The constitutional jurisdiction of county courts to settle accounts of personal representatives has been held *495
not to include the construction of wills. Page v. Huddleston,
Petitioner advances the contention that because the representatives appeared generally in the proceeding before the commissioner they waived the question of jurisdiction. He had no jurisdiction under the law of the subject matter litigated, and such jurisdiction could not be conferred by waiver.Ohio Co. v. Gibbens,
The judgment is reversed and petitioner's claim dismissed without prejudice.
Judgment reversed; claim dismissed without prejudice.
Dissenting Opinion
There is, I believe, no question but that neither a county court nor a commissioner of accounts can entertain a proceeding instituted for the purpose of construing a will. *496
Nevertheless, it seems to me inescapable that a commissioner of accounts who acts under Article 3 of Chapter 44, Code, in a recommendatory capacity for the county court in settling the accounts of executors and testamentary trustees, in many instances is required to attach meaning to the instrument conferring upon the fiduciary whose account is before the commissioner the power to act. This, I think, is clearly borne out by Code,
I do not agree with the statement in the majority opinion that the holding in the case of Page v. Huddleston,
The language quoted from the case of Hansbarger v. Spangler,
The opinion of this Court in the case of Steber v. Combs,
The county courts of Virginia and of this State originally had general civil jurisdiction both at law and in chancery, so that the provisions of Constitution, Article VIII, Section 24, must be read in the light of the fact that they are a curtailment of preexisting powers. (For a general historic discussion of county courts see De Vaughn v. De Vaughn, 19 Gratt. 556.) This section preserves to county courts probate jurisdiction, specifically including their jurisdiction to pass upon and settle the accounts of personal representatives. The privilege of making testamentary disposition of personalty and particularly of realty has been a matter of slow and complicated growth, the intricacies of which require exhaustive study to comprehend. In Judge Green's opinion in the case ofDower v. Seed,