8 W. Va. 218 | W. Va. | 1875
The plaintiff filed his bill in the circuit court of Kan-awha county, in August, 1870 against Elizabeth Kline, the widow a.nd administratrix of Daniel H. Kline, deceased and Bell, William M. and Mary Jane Kline, who are adults and Daniel H., Edwin B. and Sally Kline, infant children and the legal heirs of said decedent and others. The plaintiff alleges in his bill that the decedent, at the time of his death; was indebted to him in considerable sums of money for a portion of which, he has obtained judgments at law against the administratrix; to another portion the administratrix plead the statute of limitations and thereby defeated his recovery; that the judgments obtained by him against the administrator are as follows, viz: $339.30 with interest from the 11th day of April, 1870, and $23.23 costs, and $1,296.95 with interest from the 11th day of April, 1870, and $23.58 costs; ' that on these j udgments writs of fieri facias -were issued and placed in the hands of the sheriff of said county and returned “no property found — that at the spring terrn^ 1858, of the circuit court for said county, he obtained a judgment, in the name of Lewis Ruffner, against said ■decedent, Moses Norton and Thomas J. Buster for $264 to be discharged by the payment of $134.97, -with interest thereon from the 25th day of January, 1858, and $5.90, costs of suit; that this judgment was rendered on ■a forthcoming bond and the bond had been assigned by Ruffner to plaintiff for valuable consideration; that said ■decedent was the principal debtor in said bond and the others, against whom said judgment was rendered, were securities; that several writs of fieri facias were issued ■on said last named judgment and returned “no property found;” that he (plaintiff) has subsisting causes of action .against decedent upon which suits are now depending in
Buffner filed his answer, admitting the assignment by him to plaintiff, of the judgment for $134.97 mentioned in the bill. .
Afterwards, the defendants, Belle, William and Mary J. Kline, filed their answer to the bill. This answer was filed on the 7 th day of November, 1870. The defendants last named, in their answer, admit the death of their father, and that he died intestate, leaving Elizabeth Kline, his widow, who, after his death, qualified as his administratrix, and that they and the infant defendants are the heirs at law of said decedent. They deny that decedent was in anywise indebted to plaintiff at his death. They admit that plaintiff did obtain the two judgments at law in the bill mentioned, against said ad-ministratrix, but they deny that the claims for vdiich the said judgments were obtained, or any part thereof, -were justly due from the estate of decedent to complainant. They deny that said judgments against the administra-trix bind the heirs of decedent, or the realty which descended to them. They insist that plaintiff should establish the claims, for which the judgments were rendered, independent of the judgments, as much as though the same
The infant defendants, Edwin B., Sally S. and D. H. Kline, answered the bill by their guardian, ad litem, John A. Warth. This answer avers that said infants are of tender age and know nothing of the pretended judgments and claims mentioned in plaintiff’s bill; that they are advised that said pretended claims have been fully paid, and are barred by the statute of limitations ; whereupon they pray the court to require strict proof from, the plaintiff of all the many matters charged in said bill, and pray that their interest in the premises be protected.
On the 15th day of April, 1871, the cause came on to be heard on the bill, exhibits, the several answers of the defendants Bmffner, Norton, Buster, the answer of the infant defendants Edwin B. Kline, Sally S. Kline and Daniel H. Kline by their guardian ad litem and replication to said answers, and upon the joint and separate answer of William M. Kline, Mary J. Kline and Belle E. Kline, and the exceptions and special replication filed thereto by the plaintiff, and on the petition filed in the ■cause by A. M. Smith. And the court overruled the ■exceptions to said answer and ordered the same to be filed with the special replication thereto, and the court adjudged, ordered and decreed that the cause be íeferred to master commissioner John E. Kenna, with directions that he take, state, and report an account showing:
1st What judgments obtained against D. H. Kline in his lifetime still remain unsatisfied, and to whom the same belong.
2d What other debts, with the evidence of the same, ■still remain unpaid and unsatisfied, and when any judgment or other debt is claimed by any party to have been
3d. "What personal estate unadministed remains in the hands of decedent's administratrix subject to the payment of such debts.
4th. Of what real estate the said D. H. Kline died seized within the jurisdiction of this court; what liens with other priorities there may be on the same, and where such real estate is located, with such other matiers as any party to the suit may desire, &c.
The special replication of plaintiff is in effect a general replication and his exceptions to the answer of Belle Kline and others are unimportant and unnecessary to notice.
At a term of said court held on the 26th day of July, 1872, commissioner Kenna filed his report to which some six separate exceptions were filed by the counsel of decedent's heirs which exceptions having been argued and considered by the court, the court was of opinion that the report was not fully responsive to all the requirements of the decree referring the cause, nor as explicit as it might and ought to be, especially as to the settlement of the administration account of the personality. And without passing, specifically, upon the various exceptions the court recommitted said report and referred the cause to commissioner W. E. G. Giliison who was required to make the statements and accounts and report all the matters required by the former decree of reference to said Kenna; and in doing so that he use the depositions, vouchers and other proofs taken and reported by said Kenna, together with such other proofs as any party should present before him.
Afterwards, at a term of said court, on the 9th day of November, 1872, the cause came on to be heard upon the report of commissioner Gillison, and upon the defendant’s exceptions thereto, which exceptions the court overruled, and approved and confirmed the report. And thereupon the cause came on to be heard upon the papers theretofore read, orders theretofore made and proceedings had in the cause, and the court was of opinion that the lands of the decedent Kline ought to be sold to satisfy the judgments enumerated and reported by the commissioner, and in the order and classification set forth by him. And decreed that unless the administratrix of said decedent, or his heirs, or some one for her or them, “shall” within-thirty days from (he date of the decree pay and discharge the several judgments reported by the commissioner, with interest on the amount of each judgment, as reported by the commissioner, from the 1st day of November, 1872, and the costs of the suit, including $30 allowed by the statute, and also $179.09, paid by the plaintiff in redemption of the decedent’s lands, with interest from the 19th day of October, 1872, then Alexander T. Laidley and Charles Hedrick, who were appointed special commissioners for the purpose, were directed to sell at public sale, to the highest bidder, at the front door of the court house of said county of Kanawha, after-advertising the time andplace of making sale in some news paper printed and published in the county of Kanawha, the lands of the decedent which are described in the decree, and which are all the lands reported. In making the sale the commissioners are directed to require one-third of the purchase money, together with the costs of the
I deem it unnecessary to notice the report of commissioner Kenua, in detail as it was not confirmed by the court and the decree last aforesaid is not predicated thereon.
But the decree is based upon the report of the commissioner Gillison, to which there are various exceptions filed. Commissioner Gillison reports first the judgments against D. H. Kline, in his lifetime, and in his recapitulation thereof he ascertains the aggregate amount thereof to be $5,147.62, as being still due and unpaid, and that the several judgments against Kline, deceased, aggregating that amount are liens upon the lands of said Kline which descended to his legal heirs, and which he describes in his .report. He also reports the legal priorities of those judgments as he believes they exist. He then reports the two judgments of plaintift against the administratrix of Kline as being liens on said land seventh in priority, and of equal priority, and he ascertains that they, together with the other judgments, including principal, interest and' costs at law, amount to $7,191.66. He also says that he has “called on John A. Warth, Esq., the counsel for the administratrix, Mrs. Elizabeth Kline, and has been informed by him that no personal assets of the estate of said D. H. Kline, deceased, yet remained unadministered, and I do report: dth,” &c. He also reports that “James M. Laidley has laid before him two certificates of redemption issued to him by the Auditor of the State of West Virginia, with three receipts of the Treasurer of said State accompanying the same, from which it appears that he has redeemed two valuable portions of the lands aforesaid, and that the
All the allegations of the bill in this case, not expressly admitted, are denied by answer. The allegations of the bill, as to the amount of personalty left by decedent, and which went into the-hands of the administratrix are denied and there is no proof thereof. The commissioner did not settle the account of the administratrix, Elizabeth Kline, and it does not appear that it ever was set-tiled. The fact that the commissioner was informed by
The law requires the widow to be made a party to a creditor’s bill, that her rights and interests may be provided for and protected. Unless she elects, in a proper manner, to take the value of her life estate in the third of the real estate of which her deceased husband died seized, her dower should be assigned to her in the realty before sale thereof for the payment of debts. In this case the court decreed the sale of all the lands of the decedent, without having caused the dower of the widow to be assigned to'her according to law; and it does not appear that she elected in any way to take the value of her dower in money, or that any provision whatever was. made for her. This was also error.
On a bill by a simple contract creditor against heirs or devisees to marshal assets, there must be proof of the
The answer of the adult heirs denies all the allegations of the bill not expressly therein admitted and relies upon the statute of limitations. The plaintiff failed to file with his billas exhibits, or otherwise, official copies of any of the judgments alleged and set up in his bill, and the record fails to shotv that there was any legal evidence of the existence of either of said alleged judgments before the commissioner to justify or authorize him to report the judgments as existing and as being leins on the realty which decended to the heirs. And so as to all the other judgments reported by him as being liens on the realty. No claims against the estate of the decedent are reported by the commissioner except judgments and except the $179.09, for taxes. And
As remarked a number of exceptions were filed to said report by defendants involving directly several of the questions herein determined, adversely to the plaintiff and others, reported creditors. It was the duty of the circuit court as there were infant defendants interested to look into said report, evidence and vouchers, and see that there was legal evidence of the existence of said judgments before it confirmed the report and directed the lands to be sold, and see that there was legal evidence of the existence of said judgments before it confirmed the report and directed the lands to be sold, whether there were exceptions filed to the report or not. And the circuit court having confirmed said report, under the circumstances, it is competent and proper for this Court to look into the evidence and the whole record to see if the court erred in confirming the report.
Where the lands of infant heirs are sought to be sold to satisfy debts of the ancestor set up as existing, and unpaid and the cause is referred to a commissioner to hear proof of the debts and he makes report of debts and describes them in his report, it is the duty of the court to inspect the evidence upon which the report is based in this respect whether the report be excepted to for that cause or not, and to refuse to confirm the report as to any of the reported debts which do not appear to be cstab-
But for the foregoing reasons the decrees rendered in this cause by the circuit court of the county of Kana-wha on the 9th day of November, 1872, the 26th day of July, 1872 and the 15th day of April, 1871, must be reversed and annulled and the appellants recover against the appellee (James M. Laidley,) their costs here in this Court expended. And this Court proceeding to render such decree in the cause as said circuit court ought to have rendered it is adjudged, ordered, and decreed, that
Decrees Reversed akd Cause Remanded for Further Proceedings.