91 W. Va. 486 | W. Va. | 1922
This suit was prosecuted by some of the distributees of the
The decedent was a man of considerable wealth, owning both real and personal property at the time of his death. The real estate has been partitioned among the heirs-at-law, and it is the distribution of the personal estate remaining in the hands of the personal representative that is involved here. After paying all of the debts, with the exception of the one hereafter noted, there remained more than twenty thousand dollars in the hands of the administrator.
Adams was survived by an only daughter and seven children of a deceased son, as his only heirs-at-law and dis-tributees. Upon his death, his daughter, Rosa B. Maxwell, qualified as administratrix, reduced the personal property to money, or practically all of it, paid all of the debts, and shortly thereafter died, leaving surviving her seven children as her heirs-at-law and distributees.
The principal controversy here is between the seven children of Mrs. Maxwell and the seven Adams children, and grows out of the fact that Adams during his lifetime made considerable advancements to his daughter, Mrs. Maxwell, as well as to some of the children of his deceased son. Another part of the controversy arises over the distribution of the commissions allowed for administering the estate. The circuit court allowed five per cent, commissions for administering the personal estate, and no complaint is made as to this allowance. As before stated, Adams’s daughter, Mrs. Maxwell, was .first appointed as administratrix, and after converting all of the estate into cash, or practically all of it, and paying all of the debts, she died, and was succeeded in the administration of the estate by the appellant here, George W. Adams, her nephew, and one of her daughters. The court decreed that this commission of five per cent, should be paid: one-third to the personal representative of Mrs. Maxwell, and one-third to each of the parties who succeeded her in the administration; and the appellant, George
A claim was also asserted by Zella M. Swiger, who acted as co-administratrix with the appellant here against the estate, for services performed by her for her grandfather during his life, and for caring for the personal property and estate between the date of his death and the date the same was sold. The court allowed a part of the claim asserted by her, and this action is the basis of an assignment of error on the part of the administrator.
The first contention of the Maxwell children is that the personal representative, who alone appeals in his representative capacity, has no such interest as will support the appeal in this ease, and that we cannot consider the questions raised by him. From what we have already stated, it appears that the substantial controversy is between the Maxwell children and the Adams children, and grows out of the advancements made to them by the decedent in his lifetime. The personal representative is one of the Adams children, and, of course, is personally interested in having the amount of the advancements made to the Adams children kept as low as possible, and those made to the Maxwell children increased as much as possible. But has he any interest as personal representative? He does not prosecute any appeal in his own right, nor do any of his brothers or sisters do so, although they were all parties defendant to the suit. It is a doctrine of universal application that a party not affected by a decree cannot appeal from it. What interest has the administrator as such in the question of the distribution of this estate among the distributees? The amount of the estate is in no wise affected by this distribution, nor is his title or his interest as personal representative in the estate in any wise affected. It is quite true that an administrator or a personal representative may prosecute an appeal from a decree or judgment which affects the estate, ’as such, that is, which decreases the estate, or takes something away from it or changes the title and makes it less complete than it would have been but for the decree or judg
The status of the personal representative as to the distribution among the parties entitled thereto, and the amount allowed as commissions stands on exactly the same ground. The propriety of the allowance of five per cent, is not chal
There is one question involved, however, of which we can take jurisdiction upon this appeal, and that is, the allowance of the claim to Zella M. tíwiger for services rendered the estate. This is not a matter of distribution. The allowance of this claim depleted the estate to that extent, and the adminisrator has a right to defend the estate and to preserve its integrity for the benefit of those entitled under the law to distribution. This claim is made by Mrs. Swiger because of services rendered to her grandfather by her prior to his death, and for services rendered to the administrator for a short time after his death. That she rendered the services and is entitled to compensation, the administrator does not deny, but he questions the amount of the allowance. It seems that upon the death of her grandmother, her grandfather got her to come and live at his house and keep house for him. This ivas sometime in the year 1913, and she continued in this employment until the death of her grandfather in 1916. The proof is clear that she kept house, took care of a large number of cows, assisted in feeding the stock in the winter time, and was a very industrious and hard-working girl, being at that time eighteen years of age. Her grandfather paid her some inconsiderable sums at times with which to buy clothes, or to meet other personal necessities, and for these amounts she has given credit. It does not appear that any amount was agreed upon as compensation for her services. The appellant insists that she is not entitled to more than three dollars a week, while she claims that she is entitled to seven dollars a week. There, can be no doubt from the evidence but that her grandfather employed
While the Adams children have not attemptel to prosecute any appeal in their own right, and have not attempted to join in the appeal taken by the administrator, nor to assign any cross-error in this case, we have considered carefully whether or not the matters complained of by the administrator could be considered at this time upon this appeal should they file a petition attempting to join with the administrator, or attempt to assign cross-error, and have come to the conclusion that they could not. They filed a brief on the hearing in this Court and we were disposed, if they were in a position in which they could take advantage of it, to treat this brief as a petition to join with the administrator in the appeal, or a cross-assignment of errors, in order that the matters complained of might be considered and determined by this Court. Before this brief was filed, the period in which an appeal could be taken from the decree complained of had expired. If the decree distributing the estate was in this Court upon the appeal of any party entitled to. bring it here, then it might be that an appellee could assign
From AAthat Ave have said, it follows that the decree complained of Avill be affirmed.
Affirmed.