40 W. Va. 161 | W. Va. | 1895
This is an appeal taken by James M. Lyon from a decree of the Circuit Court of Harrison County in a suit brought by Celia M. Kester and Samuel O. Kester, her husband, against Lyon, to compel a settlement of his accounts as executor of Cyrus Ross, deceased, and to surcharge and falsify certain settlements which he had made before a commissioner of the County Court. One item of complaint by the appellant .against the decree is that it disallows and refuses to Lyon three thousand, one hundred and sixty fire dollars and forty eight cents, which had been allowed him in ex parte settlements as commission on insolvent uncollectible debts belonging to the estate. The executor was allowed commis-isions, and no complaint is made to the percentage of commission.
We can not sustain the claim for a commission on uncol-lectible debts. The statute bearing on the subject is that the fiduciary shall be allowed “any reasonable expenses incurred by him as such; and also, except,in cases in which it is otherwise provided, a reasonable compensation in the form of a commission on receipts or otherwise.” Code, c. 87, s. 17. The usual mode of compensation to the fiduciary for
Another .complaint against the decree is that it charges the executor with interest -on moneys in his hands to an ■amount greater than the interest actually received by him. He says in his evidence, what is no doubt true, that of the large amount of money in his bands a good deal was often idle; that he had to keep on hand a considerable amount to meet current expenses of litigation; that litigation between two contesting wills lasted from 1873 to 1888, and in these
Another complaint by appellant is that he is twice charged' with six hundred and forty seven dollars on account of a debt against Willis and Jarvis. The report on which the decree is based charges principal eight hundred and forty one dollars and seventy two cents, and interest two hundred and sixteen dollars and eighty eight cents, for “decree against Geo. E. Willis and William Jarvis in their suit against said executor1.” A former ex parte settlement charges the executor with “ cash on note of Geo. E. Willis and Wm. Jarvisr six hundred and forty seven dollars.” Ás the balance found in this settlement enters into the account on which the decree is based, if the debt charged to the executor in this account is the same as that for "which .the six hundred and forty seven dollars is charged, the executor is wronged to the extent of six hundred and forty seven dollars, with interest from October 20, 1887, to date of last account. Is it the same debt? To show that it is appellant’s counsel appeals to a list of notes which went into the executor’s hands, and we find it lists: (1) Note on G. E. Willis and Wm. Jarvis for
This court has decided that exceptions to a commissioner’s report have to be of the nature of a special demurrer, and must point out the alleged errors with reasonable certainty, so as to direct the mind of the court to- them; and, when the party'so excepts, the parts not excepted to are admitted to be correct, not only as regards the principles, but as relates to the evidence upon which they are based. Reit v. Bennett, 6 W. Va. 417; Crislip v. Cain, 19 W. Va. 438; Chapman v. Railroad Co., 18 W. Va. 184, point 9; Keck v. Allender, 37 W. Va. 201 (16 S. E. Rep. 520) point 1; Hutton v. Lockridge, 22 W. Va. 159.
Suppose the error not excepted to be apparent on the face of the report, does the failure to except to it waive it, and preclude the party front availing himself of it on the hearing in the appellate court? Does it estop him, if he overlooks it and fails to except to it? The generality of the language •of Crislip v. Cain would support the contention that it would, yet I think not. Hutton v. Lockridge, 22 W. Va. 176. If it would, this would debar Lyons from relief as to this item, as he did not except to it, while he did to others. Without exception no error of the report can be taken advantage of by •adults, unless it be an error on the face of the report. McCarty v. Chalfant, 14 W. Va. 531; Ward v. Ward, 21 W. Va. 262; Thompson v. Catlett, 24 W. Va. 525.
There being no exception, then, to this item of the report, the appellant has no right'to ask'this Court to give him the benefit of it, unless it is to be deemed an error on the face •of the report. What do we mean by the words “face of the report”? Does it mean face of the report alone? or can we include other parts of the record? It does not include depositions, or even documentary evidence, simply filed as such, .and not exhibited with pleadings. The case of Bank v.
Another complaint is for the first time made in brief of appellant’s counsel, and is stated thus by it: “Another error against appellant, apparent upon the face of the report, or at least, a matter which is a great hardship upon him is this: Beginning with page 241, Commissioner Lynch makes a statement of the amount of assets in the hands of appellant as executor, and he commences by charging him with seventy three thousand,five hundred and eighty se ven dollars and ninety six cents as of the 20th of October, 1888, and two! thousand, two hundred dollars and sixty cents of interest collected up to that date. This is an error, as we will now show. On page 187 of record and the three following pages will be found the settlement made by Commissioner Denham of appellant’s accounts, from which it will be seen that the commissioner charges appellant with principal, seventy two thousand, six hundred and fifty four dollars and twenty three cents; interest collected to October 20, 1888, two thousand, six hundred and forty nine dollars and seventy nine cents; and bank dividends, two- hundred and sixty four dollars — making the total charges seventy five thousand, five hundred and sixty eight dollars and two- cents. And on page 189 he gives total credits one thousand, nine hundred and eighty dollars and six cents, leaving a balance on cash account as of October 20, 1888, seventy three thousand, five hundred and eighty seven dollars and ninety six cents, which shows that all the interest up to that time collected or received by appellant was charged to him and settled as of that date. On page 283 of record will be found a settlement of appellant’s accounts made by Commissioner Adams as of the 20th of March, 1890, in which appellant is charged with
But, if this were not so, this error does not appear on the face of the report, and Adams’ report is called upon to manifest it, and that is no part of the pleading, but of á deposition; and as there was no exception to the report within the ten days during which it was in the commissioner’s office, and never any exception as to this matter, the evidence, including this deposition, can not be looked into. Arnold v. Slaughter, 36 W. Va. 589 (15 S. E. Rep. 250); Holt v. Holt, 37 W. Va. 305 (16 S. E. Rep. 675); Thompson v. Catlett, 24 W. Va. 525.
The commissioner, if exceptions are filed within ten days, himself certifies the evidence touching the same, so as to make it manifest that he has sent it up, but he has certified none in this cause. Arnold v. Slaughter, 36 W. Va. 589 (15 S. E. Rep. 250).
Thus we are brought to the conclusion that we can not reverse the decree.
[Note by Brannon, Judge: — It is prudent to note the fact that after the above decision, ck. 8, Acts 1895, was passed making changes in the statute law referred to above, changes which may render useless many prior decisions and materially alter practice.]