53 W. Va. 298 | W. Va. | 1903
William P. Bolling and others appeal from certain decrees of the circuit court of Greenbrier county in the chancery cause of Alexander Mathews and J. W. Johnston, executors of the last will and testament of Wm. M. Tyree, plaintiff, against the appellants and others, defendants, and rely on numerous assignments of error which may be-considered under the following classification:
1. In adjudicating the validity of the will in this suit.
2. In erroneously adjudicating the validity of the will on the pleadings and without affording the parties opportunity to produce their proof.
3. In not suspending proceedings until the validity of the will could be determined in a subsequent suit instituted by Mollie T. Tyree, one of the defendants in the circuit court of the United States for the Southern District of West Virginia at Charleston for this purpose.
4. In deciding that Davis and Priddle claims were properly payable out of the personal fund rather than the proceeds of the real estate sold to J. L. Beury.
The plaintiffs filed their bill for the main purpose of having the. will construed, and as incidental thereto they allege “that the said will and codicils were in all respects valid and effective, that they are free from every infirmity and are not subject to objections on any ground or for any reaason whatever.” And they pray that the court “will pass upon and decide as to the validity and force of said will and the true con
The will having been duly probated is unimpeachable excepr in the manner provided by statute. The devisees under the
Out of deference to the view of other members of the Court, who still stick to tire separate probate idea and whn claim that the statute confers the right of • impeachment or establishment upon individuals rather than jurisdiction'upon a court of chancery I for the present yield my own and submit to their views. There is no doubt, however, that this is a case wherein the parties in interest may waive their right to- a separate suit and consent to the jurisdiction of the court. 17 Am. & En. En. Law (2d Ed.) 1065. In the interest of peace, the quieting of titles, and the settlement of estates, the court should have the power in a proper ease to compel submission to its jurisdiction without the circumlocution of unnecessary pleadings and procedure.
The appellants, though duly notified, failing to appear to make any defence, the court entered a decree by confession, and an order of publication declaring the will valid and construing it. Afterwards, at the same term of court, the appellants appeared and filed the affidavit of George W. McClintic, one of their attorneys, and moved the court to set- aside or reform the decree so- as to prevent it being an adjudication of the validity of the will. This motion, being overruled, they presented and filed the petition of appellants and renewed their motion, which was again overruled, but the court granted them the privilege of demurring to and answering the bill. They afterwards demurred to the bill and filed their answers', ■to which plaintiffs replied generally and again moved the court to set aside the decree and suspend all further proceedings - until a suit brought by one of them in the circuit court of the United States in and for the District of West Yirginia, for the purpose of testing the validity of the will could be heard. It appears that such suit was not instituted until about the time the decree complained of was entered. The court overruled the demurrers, refused to set aside the decree, continue the cause or to suspend proceedings awaiting the validity of the will to be- determined by another tribunal.
It has been held by this Court that “Until the term ends, every judgment or decree entered may for good reason be modified or set aside in whole or in part. The court has a discretion to do this in the exercise of jvhich this Court will not interfere -except for the most cogent reasons.” Bank v. Neale, 28 W. Va. 744. What is good reason for setting aside a judgment at law has been settled in the case of Pose v. Carr, 42 W. Va. 72, where it is said in first point in syllabus, “Such good cause can only appear by showing fraud, accident, mistake, surprise or some other adventitious circumstances beyond the control of the party and free from neglect on his part.”
When we look at the motions made and the answers and affidavits filed by tire appellants, the conclusion is forced upon
If appellants had appeared and asked it in time, it was the duty of the court to have reserved to them their right of impeachment under the statute.
The affidavits show that by a misunderstanding between counsel appellants counsel neglected to appear and insist on a reservation of their right of impeachment prior to the entry of the decree. It is plain that they never intended to surrender this right, and if lost to them, it was caused by an oversight or misunderstanding. In such cases the rule of equity practice is almost as stringent as that at law,' yet equity always endeavors to relieve against surprise and mistake and.preserve to parties all their legal rights unless they have clearly waived or surrendered them. While there was no good ground for continuance or stay of proceedings presented, and while the case was rightfully for the plaintiffs as there was no proper issue as to the validity of the will made up between tire proper parties in. the method required by the statute,1 and the court did not err in overruling appellant’s motion and refusing to set aside the decree, the court should have reserved to appellants their statutory right to impeach the will in any proceeding they might be advised to bring for that'purpose. It was not error for the court to refuse to- postpone its decree or proceedings to await the suit alleged to have been instituted in the circuit court of the United States.
Nor was the circuit court, nor is this Court called upon to determine the jurisdiction of such district court in probate eases. This is a question to be determined by that court alone. All that this Court can do is to amend the decree so as to reserve to the appellants their statutory right to file a bill to impeach the will of their testator without regard to what court they may select to determine the question for them. Under the circumstances of this case, this appears to be proper, otherwise
The construction of the will requires a careful examination thereof, and its codicils. It is as follows, to-wit:
“I, William M. Tyree, do hereby make and publish this as my last will and testament in manner and form following, viz:
1st. I direct that my executors, hereinafter named and appointed, shall proceed to collect according to their judgment and discretion, all debts and demands due and belonging to me and evidenced by notes, bonds, open accounts or otherwise, except certain notes or bonds which I hold on and of J. A. Amick and W. A. Amick, and which they shall not press for payment ' and collection until certain lands, owned jointly by me and the said Amicks shall have been sold. And I further direct that my said executors shall only charge and collect from the said Amicks interest on their said notes at the rate of three (3) per cent, per annum from the time and dates at which they become interest bearing.
2nd. I hereby authorize, empower and direct my said executors to sell all the personal property in the way and form of goods and chattels belonging to me, and which I may have, except such of said goods and chattels as are hereinafter specifically bequeathed and also to sell all the real estate of which I may be seized and possessed or which -may belong to me either in law or in equity and which I own either severally and solely or jointly with some other person or persons. And in the term ‘Peal Estate’ as here used, I mean, intend- and include, besides other property, my interest in what is known as the “Upper Potts CreelP or ‘The Potts Valley Furnace and Mining Co.’ property, notwithstanding the fact that my said interest is represented by certain, shares of stock in the said Company, 'and might and probably would but for this express diretcion and provision to the contrary, be regarded and considered as personal property.
And I further direct that whatever and in whatever connection the words ‘real estate-’ are used in this papers they shall
3rd. I direct, empower and authorize my said executors to. make said sales either publicly or privately, at such time or times, at such place or places, in such manner and form, and upon such terms as they may deem proper, most judicious and best for the interests of my estate.
4th. I hereby authorize and empower my said executors to execute any and all deeds, title bonds and other papers that may be proper or necessary to carry out, effectuate and consummate any and all sales to be by them made as aforesaid. And I further empower and authorize them to execute any deed or other papers that may be necessary or proper to carry out and perfect any contract or agreements, whether oral or in writing, which I may have made and which still remain unexecu-ted.
5th. Out of the personal fund of my estate, consisting of money on hand, the proceeds of collection and of the sales of goods and chattels, I direct that my executors retain and use a sufficient amount for the payment of any and all debts due from and owing by me, and of all levies, taxes and assessments accrued or that may accrue on my entire estate, real or personal until the same shall have been converted, disposed of and distributed and the business of my whole estate wound up and closed, as herein, by this my last will provided and directed.
6th. I give and bequeath my gold watch and chain to my nephew W. F. Tyree; my ‘Harry Beirne’ bay mare, my saddle and bridle to my nephew Harry T3rree; my buggy and harness to J. W. Johnston; and my black horse to Mary Feamster, a daughter of Frank Feamster, dec’d, who lives with John Johnston.
7th. I give and bequeath and direct my said executors to pay, out of the personal fund of my estate the following sums or legacies to the following names persons severally and respectively, viz:
To my nephew W. F. Tyree (1000) one thousand dollars.
To my nephew Frank A. Tyree (1000) one thousand dollars.
To my niece Martha Tyree, daughter of my deceased brother John (1000) one thousand dollars.
To my nephew William P. Bolling (1000) one thousand dollars.
T'o my nephew John Bolling (1000) one thousand dollars.
To my nephew Dr. Lewis Bolling (1000) one thousand dollars.
To my niece Mrs. Annie Erwin nee Bolling (1000) one thousand dollars.
8th. I give and bequeath and direct my executors to pay the rest and residuum of the personal fund, as aforesaid of my estate to the pecuniary legatees above named in the 7th clause of this papers, and to my niece, Mrs. Mollie Tyree, nee Bolling, to be given, shared and distributed between them upon the basis and in the proportion oE the legacies above bequeathed, and as to the said Mollie Tyree as if she were a legatee herein, and had been hereby given a legacy of (1200 twelve hundred dollars.
9th. I give, devise and bequeath to my brother, Samuel F. Tyree, all the net proceeds of all my real estate as aforesaid, to be said by my said executors as aforesaid and as and when sold. And I direct my executors to pay over to my said brother the said net proceeds as and when collected and realized from such sales to be by them made.
10th. I direct that there' shall be no inventory, appraise.ment or sale of any ox all of my estate either real or personal save and except such sales as are hereinbefore authorized and directed and which shall be made as herein provided for and' fully set forth.
11th. I hereby appoint my friends Alex’s F. Mathews and J. W. Johnston to be the executors of this my last will and testament. And having entire confidence in their business capacity and integrity I direct that no security be required of them on their executorial bond.
And .
In witness of all the foregoing I hereto set my hand and affix my seal this the 1st day of August, 1900.
William M. Tyree. (Seal.)
I, William M. Tyree, do hereby make, publish and declare this to be a codicil to my will, dated August the first, 1900, and to which this codicil is to be annexed and attached, in manner and form following, viz:
1st. In the term and words “Real Estate” as used in my said will, I mean, intend and include, besides other property my interest in what is known as “The Lower Potts Creek” or “The Potts Mining and Manufacturing Co.” property notwithshand-ing the fact that my said interest is represented by certain shares of stock in the said company, or by an interest in the notes executed-for said property by “The Yalley Ore Co.” to Alex’s E. Mathews, Trustee, and might and probably would but for this express direction and provision to the contrary, be regarded and considered as personal property. And I further direct that whenever, and in whatever connection the words “Real Estate” are used in my said will they shall be understood and construed as meaning, intending and including my said interest or stock in said property, in the said “Potts Yal-ley Mining and Manufacturing Co.” and in said notes of “The Yalley Ore Co.”
2nd. I hereby give and bequeath to my brother Samuel E. Tyree all my wearing apparel and all my personal chattels and belongings which are not by the terms of my said will specifically disposed of and bequeathed.
3rd. I hereby give and bequeath to my said brother Samuel E. Tyree my bay horse recently bought by me from W. W. McClung but subject to this provision and condition that the said McClung shall have the right at his option to purchase •said horse from my executors at the price paid him therefor by me, which is-$150.00.
-4th. In the event W. W. McClung exercises said right and purchases said horse from my executors at said price then I hereby give and bequeath the said amount to arise from such skle to my said brother Samuel E. Tyree, and direct the same to be paid over to him by my said executors.
5th. I hereby direct that, as to the said wearing apparel, my other personal chattels and belongings and as to said horse in the above items 2nd, 3rd and 4th of this codicil mentioned items 2nd and 8th of my said will be modified accordingly.
In testimony of all the foregoing I hereto set my hand and affix my seal the 20th day of December, 1900.
Wm. M. Tyree. (Seal.)
Codicil Ho. 2.
I, Wm. M. Tyree, do hereby make, publish and declare this to be codicil Ho. 2 to my will dated August 1, 1900, and to which this codicil is to be annexed and attached in manner and form following, viz:
Whereas, if the real estate owned by me at the time and date of the execution of my said will, and of what is meant and. intended by and included in said term "real estate,” as used and defined in said will and in codicil Ho. 1 thereto attached, some part or portion, or parts or portions may be sold, alienated and disposed of by me and converted thus into personal property, now therefore in the event of any such sale or alienation of any part or parts of said property by me and in my life time as aforesaid, I do1 hereby will and direct that all the proceeds of such sales and alienations either not collected by me, or if collected, not used and disposed of by me in person and so far as said proceeds remain at my death either uncollected or if collected, not used and disposed of by me, notwithstanding the tiren personal character of said proceeds shall be understood to be meant and intended by and included in the term "real estate,” and shall be disposed of as real estate under the provisions and directions of my said will and codicils whenever, wherever and in whatsoever connection therein the said term is used. And no' part of such proceeds shall be treated or disposed of as personal property within the meaning and purposes of said will and codicil.
And
In testimony of all the foregoing I herewith set my hand and affix my seal this the 15th day of January, 1901.
Wm. M. Tyree. (Seal.)'
Greenbrier County Court,
April Term, 1901, April 9, 1901.
A paper purporting to be the last will and testament of Wm. M. Tyree, dec’d with two codicils thereto was this day pro
Teste: C. B. Buster, Clerk.
A copy. Teste: C. B. Buster, Clerk.
During his life time and about the time of' the making of his last codicil the testator sold and conveyed a large tract of 'land or rather many tracts of land, in conjunction with others to J. L. Beury, the purchase price of which is a very large sum of money being at the rate of $10.00 and $11.00 per acre. In connection with these sales he executed the two following papers, to wit:
“Out of the sale of lands this day made situated in Fayette, Greenbrier and Nicholas counties, West Yirginia, made by myself, J. W. Johnson, W. A. Amick, J. A. Amick, L. E. McClung and S. L. Price to J. L. Beury or D. C. T. Davis as trustee for said J. L. Beury, I 'hereby promise, personally and individually, out of the cash payment made for said lands, to pay to D. C. T. Davis fifty cents per acre for each and every acre of said lands so sold and conveyed.
Witness my hand and seal, this 24th day of January, 1901.
(Signed) Wm. M. Tyree. (Seal.)”
“Out of the sale of the land this day made, situate in Fay-ette and Nicholas counties, West Virginia, made by myself, J. W. Johnson, W. A. Amick, J. A. Amick to J. L. Beury or to D. C. T. Davis as trustee for said J. L. Beury, I hereby promise personally and individually, out of the cash payment made for said lands to pay B. L. Priddie the sum of fifty cents per acre for each and every acre so sold and conveyed in which said Amick now has any interest.
Witness my hand and seal, this 24th day of January, 1901.
Wm. M. Tyree. (Seal.)”
The allowance to Davis appears to be commission for making sale and that of Priddie is to pay him for releasing a prior option he held against a large portion of the lands at $9.00 per acre. Hence, both of these obligations arise from and were regarded by Wm. M.‘Tyree as part of the expense of the sale
The circuit court decreed this sum’ to be paid out of what the will denominates the personal fund. The applicants insisted that this sum should be paid out of the real fund and this matter was necessarily included in their motion to set aside the decree. The circuit court overruled their motion; they now insist that the court erred in this respect. An inspection of the will shows that the testator divided all his property without regard to its legal division into two funds, one of which he - calls personal fund and the other real estate. Out of the personal fund, after providing for payment of all his debts, he makes numerous specific legacies to those who would have been his legal heirs, and then provides for the division of the residue among his legatees in proportion to their legacies. Samuel F. Tyree is much the largest legatee as- to this fund. The testator then provides for the sale of all his real estate including certain interests in mining stocks, all of which he denominates real estate, and directs his testator to pay the net proceeds thereof to his brother Samuel F. Tyree.
By codicil Ho. 2, which was executed about the time of his sales to Beury, he provides that the proceeds of any sales by him made shall be treated as real estate in so far as not collected, or if collected not disposed of by him in his life time. It was plainly the intention of the testator to keep the two funds entirely separate, the personal and the real fund. It is just as plainly ( his intention to have paid the Davis and Priddie debts out of the real fund during his life time, but not having done so Samuel F. Tyree insists that the will speaking as of the day of 'his death makes them payable out of the personal fund. But making the bequest of his real estate speak as of the date of his death Samuel F. Tyree is only to have the net proceeds thereof, meaning thereby that the expenses incurred in the sale thereof must be first paid. Codicil Ho. 2 provides that the proceeds of the real estate shall be disposed of as provided in the main will and this is that the “net proceeds” thereof shall go to Samuel F. Tyree thus showing plainly that it was his intention that from the sale of Ms real estate the necessary expenses must be deducted before the “net proceeds” should be paid over' ■to the legatee. The expenses attached to the sale of his real
The decree will be so modified and corrected as to provide that the claims of D. 0. T. Davis, Jr., amounting at the date of the decree to the sum of $6,133.30 and B. L. Priddie, amounting at the date of the decree, including a credit of $500.00, to the sum of $3,513.36, be paid from and charged by the executors to the proceeds of the sales of the real estate made by the testator during his life time to J. L. Beury, to the relief of the personal fund, and to reserve to appellants their statutory right to impeach the will of Wm. M. Tyree, deceased, in any proper suit for that purpose, and as modified and corrected will be affirmed with costs to the appellants to be paid by the executors out of the funds in their hands bequeathed to Samuel E. Tyree. The cause is remanded for further proceedings.
Remanded.