20 W. Va. 382 | W. Va. | 1882
announced the opinion of the Court:
The first question presented by this record is, whether the circuit court erred in its order of November 6, 1879, directing this cause to be revived in the name of the administrator and heirs of Wm. B. Reid. The occasion of filing
The administrators of Charles MeClung having in 1863 sued ¥m.' B. Reid on this bond, he brought this suit against the-executors of Elizabeth Stuart for a settlement of their accounts as such executors, and complaining specially of the refusal of the executors of Elizabeth Stuart to pay this bond and of their permitting him, a mere security to be harassed by this suit on this bond, while the executors of Elizabeth Stuart had ample funds in their hands to pay this debt. The bill specially prayed, “that the executors be ordered to pay off said debt of two hundred and eighty-three dollars and nineteen cents. ” The executors of Elizabeth Stuart promptly answered this bill, and in their answer alleged, that this debt to the estate of Charles MeClung was not contracted by their testatrix, Elizabeth Stuart, but by the plaintiff, ¥m. B. Reid, for purchases for himself at the sale of the personal
' Ón September 1, 1865, the cause was by a decree of the court referred to a commissioner to settle the executorial accounts of the executoTs of Elizabeth Stuart. The war then “pending, little or nothing was. done under this order;, and the wife Of "Win. B. Reid dying, on his motion it was ordered, that the cause be revived in his name as administrator of his wife and. prosecuted by him as plaintiff in his own right and as administrator of liis wife, and., not noticing the former order Of’reference the cause was again referred to the same 'commissioner to settle the executorial, accounts of the executors of Elizabeth Stuart and also to report all debts due from herj which remained unpaid. Thus in effect requiring an investigation by the commissioner, as to whether this debt due to McClung’s estate was a debt of Elizabeth Stuart or of Wm. B. Reid. Tliis order was made on January 11, 1877, but long'before it was made, on September 19, 1871, one o.f the executors of Elizabeth Stuart had paid this.debt; and ’before.the commissioners.he sought in settling, the accounts Between them and "Win. B. Reid to have- it charged to said 'Reid; 'and depositions were taken on.the question, whether ■'this''McClung. debt was a debt of ¥m. B. Reid, on .which Mrs. .Elizabeth ' Stuart was surety, .or the reverse. The weiglit',of the testimony, even if we exclude the depositions, which were taken without notice, was, that this was a debt of ÍÍVm.'E. Reid, and if those depositions, which were taken without notice, were read this conclusion -would be much strengthened. . It is unnecessary to determine definitely whether 'these latter depositions should be considered. The
... In this stage of the case Wm.-B. Reid died and:his administrator and heirs declined to have the cause revived-in their name as plaintiffs; and thereupon the defendants, the "executors of Elizabeth Stuart, filed'a petition ásking-, that the court .would order the revival of the cause in. the names- of these representatives of- the' deceased .'plaintiff, and ■ that 'the cause .might be proceeded in to .a-final decree; -This petition'was demurred to, but the demurrer was overruled* and the court ordered, .that- the cause, be revived in the name of the administrator and heirs of-Wm, ,B. Reid and proceeded in to á final hearing, and recommitted the cause to a commissioner- to take and report the accounts formerly ordered. ; ■■ "
Before, the passage of any statute law when a sole'plaintiif died intestate his.representative, his administrator or heirs, as the case might, be;or bofh.if each were interested,had aright by- a bill of revivor to revive a cause .in equity and proceed in if ,to a final decree. But.in .such a. case this right- of revival, if phe cause of action itself survived, was in the case put-absolute, and the parties filing the-bill had-only-to prove that-they were the representatives ,of the deceased, .if -this -were denied, and th,o-cause was as .a matter, of course revived. -Both-in England and in the various.States of .this Union itwas-there-fore wisely considered by the Legislatures, that im such a-case it was entirely-.unnecessary to require the representatives Of the deceased plaintiff to file a-fofmallhill of revivor, and that a simple motion with pr without notice'or a shire'-facias to revive the cause was all that, was uecessary -to effect all the objects of a-formal hill-of-revivor..- In. such case under; the .statute law. of Virginia in. existence''prior to -1819 on the
While under these statutes a hill of revivor has long been disused in Virginia and in West Virginia and indeed in England and in the various States of this Union, yet there is nothing in our statute-law, which prevents it from being used, if the parties * entitled to revive a chancery cause where the plaintiff dies choose to resort to their bill of revivor. As a general rule the plaintiff in a chancery suit can abandon his cause at his pleasure, and if having this right he dies, his representative, either heir or administrator, to whom his interest survives, may revive the suit if he pleases, but of course in such a case he alone can revive it either by' the bill of revivor or in the statutory mode. But when the defendants have acquired such an interest in the cause that the plaintiff would not be allowed to dismiss the cause at his pleasure, or where there has been such an order of reference in the cause as that, if a balance should be found in favor of the defendant, he would be entitled to a decree against the plaintiff, and in that stage of the cause the plaintiff dies, the defendant would have a right to revive by bill of revivor or by statutory modes. See Benson v. Wolverton, 16 N. J. Eq. 110; Keen v. LaFarge, 1 Bosw. 672 and 16 How. Pr. 377; Banta v. Marcellus, 2 Barb. 373; see also McDaniel v. Baskervill, 13 Gratt. 233.
The courts of Virginia and of this State have always shown the greatest liberality in construing any paper filed by the plaintiff as a bill or petition, whenever it sets forth
The circuit court therefore did not err in regarding the petition filed by the executors of Elizabeth Stuart on November 6, 1879, as a bill of revivor, if they had at that time a right to file such bill and require the revival of the cause. And it seems to me that there can be no question but that they had a right to have this cause revived. As far back as September 1,1863, there had been a reference of this cause to settle the executorial accounts of the defendants, and the female plaintiff having died the male plaintiff had 'caused the suit, as he had a right to do, to be revived in his name as her administrator, and the court directed it to proceed in the name of the male plaintiff' in his own right and as administrator of his wife, and at the plaintiff’s instance had again ordered a settlement of the executorial accounts of the defendants and also an ascertainment of the debts of the estate as well as the sums due to the executors of Elizabeth Stuart. This account had been proceeded with, and a number of depositions had been taken sufficient to show, that a considerable balance was due from the plaintiff ¥m. B. Reid to the executors of Elizabeth Stuart, the defendants, because of their having paid some six years before, but since the institution of this suit, the debt due McClung’s estate on this bond signed by both the plaintiff, ¥m. B. Reid, and the defendant’s testator, Elizabeth Stuart. This, in his original bill the plaintiff expressly claimed, was the debt of Elizabeth Stuart, and asked the court to order her executors to pay it. They in their answer denied, that it wras her debt, and insisted
We will now consider, whether the court in this decree
The first of these exceptions was, that “ vouchers 5 and 8 in the executorial account are notes given by John Stuart after the death of the testatrix. The charges made on these vouchers are therefore improperly' credited to the executors.” This exception is based on an error as to the facts proven in the case. The dates of these notes are respectively June 9, 1859, and June 29, 1859; and Mrs. Elizabeth Stuart did not die till July, 1859. These notes on their face show, that they were given for debts of Mrs. Elizabeth Stuart contracted shortly before her death, and when paid by her executor they were properly credited to him. The court in its said decree in effect overruled this first exception and did not err in so doing.
The second exception is: “If Mrs. Stuart had divided her property and delivered it to her children in 1856, as the defendants prove was the case, voucher 10 should be paid by the children and not by her estate; therefore this item of two hundred and seventy-two dollars and twelve cents has been improperly credited to the executors.” Much the largest part of this item as shown by voucher 10 was land-tax against Mrs. Elizabeth Stuart paid by one of her executors, John Stuart, after her death. These lands remained in the name of Mrs. Elizabeth Stuart during her life and were taxed to her and were disposed of by her will made January, 1858, and codicil made in 1859 shortly before her death. The division then of her property among her children in 1856 was not a complete or perfect gift of these lands, and she was properly chargeable with the taxes on them, and the executor properly credited with it as a payment of a debt of hers. And the same, so far as the evidence shows, may be said of the tax on negroes and the other taxes included in voucher 10. The court in effect by its decree of June 17, 1880, overruled this second exception, and in so doing did not err.
The third exception is, that “vouchers Eos. 19 and 22 are not proved to be debts of tb e testatrix. The executors who have improperly paid these debts, are not competent witnesses to prove them against the estate of ¥m. B. Reid, deceased. The
The fourth exception is that “ the debts represented by vouchers 49, 50, 51 and 58 are debts of John Stuart. They are certainly not claims against the estate of the testatrix, as they show on their face, that they relate to transactions with John and the other heirs of the estate.” William R. Stuart proves that these various receipts, though on their face they show they were for money paid on land purchased by Jolin Stuart of Alexander McClung, yet in fact this land was bought of Alexander McClung by John Stuart simply as the agent of his mother Elizabeth Stuart, and the deed for the land was made to her or to her heirs after her death, so that this purchase-money due on this land was in point of fact a debt of Elizabeth Stuart and was properly paid by her executors. The court in its decree of June 17, 1880, in effect overruled this fourth exception and in so doing did not err.
There are no other errors, or supposed errors in this decree of June 17, 1880, which have been pointed out by counsel, or' which I have been enabled to find. The entire decree is, so far as I can see, in accord with the principles I have stated in this opinion, and it must be affirmed as well as the order of November 6, 1879; and the appellees
Decree Aeeirmed. Cause Demanded.