10 W. Va. 596 | W. Va. | 1877
delivered the opinion of the Court.
The plaintiffs on the 22d day of April, 1872, filed in the circuit court of Greenbrier county, their declaration in ejectment against Thomas A. Henning, to recover two parcels of land, near the town of Lewisburg, in said county. The declaration contains three counts. One in the name of Elizabeth J. L. Jones, Sarah R. Duffy and Francis B. Smith; one in the name of Agnes M. Smith, Elizabeth J. L. Jones and‘Sarah It. Duffy, and the third and last count in the name of Agnes M. Smith, Elizabeth J. L. Jones and Alexander Knight, administrator of John W. Jones, deceased. Each count is for the same two parcels of land, and describes the same with more or less particularity. On the 22d day of November, 1873, the plaintiffs, by leave of the court, amended their declaration (but in what respect does not appear), and the defendant pleaded not guilty, and issue was duly joined on said plea. On the 17th day of June, 1875, there was a trial of the cause by jury before said court, and verdict found by the jury for the defendant, and judgment rendered thereon by the court in accordance with the .verdict and for costs. During the progress of the trial, the plaintiffs excepted to rulings of the court, and after verdict moved the court for a new trial, which motion the court overruled. The plaintiffs tendered their bill of exceptions containing all the facts proved on the trial, the ruling of the court and exceptions thereto by the plaintiffs, which bill of exceptions was duly 'signed, sealed and made a part of the record, in the cause. To the judgment of said court rendered in said' cause as aforesaid, the plaintiffs obtained a supersedeas
The circuit court erred: First. In admitting as evidence the paper purporting to be a copy of the will of William Smith, deceased, because—
1. The dwelling house and real estate of said Smith being in the county oí Greenbrier, the county court of Bedford bad no jurisdiction to admit the original will to probate, consequently, a copy from said county court could not, if resisted, be legally admitted to record in Greenbrier county.
2. The laws of this state do not authorize a circuit court to admit a copy of a will from another state to record in this state; and
3. The said copy was not ,so authenticated and proved as to authorize the court to admit it to probate in this state.
Second. The copy of said will not having'been properly proved or legally admitted to record as a will of realty in this state, it should have been excluded from the jury.
Third. The deed from John W. Jones, executor, &c., to the defendant, was improperly allowed to go to the jury as evidence, because—
1. The said Jones having qualified as executor, in the state of Virginia, after the formation of this state, and having never qualified in this state, his acts as executor in this state were void, and the deed made by him did not pass the title of the testator to the land mentioned therein.
2. The said deed is not under seal and does not purport to convey the title of the testator in said lands — no power being recited in said deed, it could pass nothing except the personal interest of the grantor in said lands; and,
3. The sale of said lands by said executor for a nominal and almost worthless currency or commodity, was a
4. The instructions asked for by the plaintiffs were each and all improperly and erroneously denied and refused by the court.
In disposing of the first error assigned, I will first consider the first division of the same, and will then consider each of the others seriatim. It appears by the bill of exceptions, that, it was admitted on the trial that the land in the declaration mentioned is situate in Greenbrier county, West Virginia, and was in the possession of, and owned in fee by the late William Smith at the time of.his death; that said land is now, aud was at the commencement of this suit, in the possession of and claimed by the defendant, and that it is the same land that is mentioned and described in the deed from John W. Jones, executor, &c., to the defendant, hereinafter set forth, and under which the defendant claims title ; that the plaintiffs, then proved that the said William Smith died on the — day of July, 1863, at the residence of his son-in-law, John W. Jones, in the county of Bedford, in the state of Virginia, where he was staying as a refugee; that he had gone from his home, in Lewisburg, in the year 1862, and had taken with him his slaves, horses, wagon, carriage and some other property, to the county of Bedford; that the dwelling house of said Smith, at the time of his death, was in the county of Greenbrier, where he had resided for more than twenty years, and had declared his intention to return to it as soon as the war was -over; and that all the real estate owned by him at the time of his death lies in the counties of Greenbrier and Nicholas, in the state of West Virginia; that the-plaintiff, Agnes M. Smith -is the widow of said William Smith, and the plaintiffs, Sarah R. Duffy and Elizabeth J. L. Jones are the daughters, and Francis B. Smith, the son, and only heirs of the said
■ “I, William Smith, being of sound mind and disposing memory, do make this, my last will and testament: I will and bequeath to my wife, Agnes M. Smith, and my two daughters, Elizabeth J. L. Jones and Sarah B. Duffy, (John W. Jones acting by my appointment as trustee for Sarah B. Duffy), all my property of every description, both real and personal, including bonds, moneys, accounts, &c., (excepting my library and Nicholas county land, which will be disposed of hereafter). After the payment of all my j ust debts, my property of every description, (with the above named exceptions), I direct to be equally divided amongst my wife, Agnes M. Smith, and my two daughters E. J. L. Jones and S. B. Duffy, under the following restrictions, to-wit: After the death of my wife, Agnes M. Smith, I direct that her proportion of my estate shall revert to my two daughters, E. J. L. Jones and S. B. Duffy. Should my daughter, S. B. Duffy, die before my wife, intestate and -without issue, then the whole of' my wife’s proportion of my estate shall revert to my daughter E. J. L. Jones, and in the event of her death, to her children. John-W. Jones, of Bedford county, whom I hereby appoint and constitute a trustee for my daughter S. B. Duffy, shall hold all the property and effects derived from my estate, to which*613 sbe shall be entitled by this, my will, for her separate use and benefit, free from the debts, liabilities or control in any manner of her husband, Philip Duffy. I further direct that S. B,. Duffy’s proportion of my real estate be sold as soon after my death as may be, if she desire it, and that the proceeds be held by said trustee for her separate use as aforesaid, subject to any disposition she may think proper to make of them. I will and bequeath to my daughter, E. J. L. Jones, my entire library, consisting of books of every description. . I will and bequeath to my son, Francis B. Smith, and his children, my tract of land in the county of Nicholas; should said Francis B. Smith, however, die before either of my daughters, or without children, then this Nicholas land shall revert to my two above named daughters. Whosoever of said parties to this will that shall attempt to change or break said instrument in any manner, shall forfeit all claim or claims to their specified proportion of my estate. Lastly, I do hereby appoint and constitute my son-in-law, John W. Jones, my executor, to sell and convey any real estate that I may have, and to do any and all acts proper for an executor.
“Signed this 27th day of June, 1863.
“WM. SMITH.
“ W. A. LONDON.
“ F. M. HaweiNs.”
“At a court of quarterly sessions, begun and held for Bedford county, at the court house, on Monday, the 27th day of July, 1863, this last will and testament of Win. Smith, deceased, was produced in court, proved according to law by the oaths of W. A. London and F. M. Hawkins, the subscribing witnesses thereto, and ordered to be recorded. And on the motion of John W. Jones, the executor named in the will, who made oath thereto, and together with Thos. M. Jones and B.o. C. Jones, his securities, entered into and acknowledged a bond in the penalty of $20,000, conditioned according to law, eerti-*614 fixate was granted him to obtain a probate of said will due f°rm- And the said bond was ordered to be re-C01'ded-
“Teste: • A. A. Arthur, 0. B. 0.”
“State of Virginia, Bedford county, io-wit :
I, Robert S. Quarles, clerk of the county court of the county and state aforesaid, do certify that the. foregoing paper, signed William Smith, is a true copy of the original will of William Smith, deceased, which will is on file in the clerk’s office of said court, and that the order following, admitting said will to probate, is a true transcript from the records of said court.
“ Given under my hand and seal of said court, this, the 10th day of June, A. D., 1874, in the ninety-eighth year of the commonwealth.
[Court seal.] “Ro. S. Quarles.”
At a circuit court held for Greenbrier county, at the court house thereof, on Monday, June 14, 1875, this day came the parties by their attorneys, and the plaintiffs, Samuel Gilkeson, Thomas A. Henning and others, moved the court to admit a paper, purporting to be a certified copy of the will of William Smith, deceased, from the county court of Bedford county, Virginia, to record in this court, and the court, after hearing the evidence and argument of counsel, is of opinion that the said paper should be admitted to record, and have the same effect, both as a will of personal and' real estate, as the original would have if admitted to record. It is, therefore, considered by the court that said copy be recorded in this court as a will of real and personal estate, and that the plaintiffs recover their costs of the defendants.”
Memo. — “ On the trial of this motion, the defendants took a bill of exceptions to the rulings and j udgment of the court, which is signed, sealed and made a part of the record in this cause.”
The plaintiffs’ counsel argues that the order of the county court of the county of Bedford is void and of no
“ 23. The circuit, county and corporation courts shall have jurisdiction to hear and determine suits and controversies, testamentary, according to the following rules, that is to say: in the county or corporation wherein the defendant has a mansion house, or known place of residence ; if he has no such house, or place of residence, then in a county or corporation wherein any real estate lies that is devised or owned by the defendant; and if there is no such real estate, then in the county or corporation wherein he dies, or a county or corporation wherein he has estate.”
It must be admitted that this statute conferred jurisdiction upon the county court of the county of Bedford over the subject matter of admitting wills to probate. I think there can be no doubt upon this subject. If this then, is true, can the judgment of the county court of Bedford admitting the will to record be questioned in this collateral way ? In the case of Fisher v. Bassett, et al., 9 Leigh, 119, it was held that where “a county or corporation court grants administration of the estate of a foreigner, who died abroad, and who had no residence in the county or corporation at the time of his death, and had no estate of any kind there, so that in truth the state of facts is not such as to give jurisdiction to grant administration in the particular case, according to the provisions of the statute. 1 Rev. Code, ch. 104, §12, 32—yet—held: that such a grant of administration is not void, but only a voidable act; and, therefore, rightful acts of and fair dealings with the administrator,
“However much the citizens of Greenbrier county might have desired to have organized under the constitution and laws of this state, they could not do so, and have the constitution and laws enforced among and over them. They could not do so, because of the paramount force of the state government at Richmond ; and although that government was declared to be an unlawful government, it was, nevertheless, an actual government of paramount force at that time; or, in other words, it was a de facto government.” And this Court, in that case, recognized the validity of the appointment of an administrator by the county court of Greenbrier during said war, until an administrator was appointed by legal authority under and according to the laws of this state. See, also, Henning v. Fisher, 6 W. Va. R., 238. At the time of the death of said William Smith, and the probating of said will and the qualification of the executor, the counties of Greenbrier and Bedford were within and were under the same state governmental jurisdiction and authority. They were each governed by the same de facto government, and subject to the same laws and justice, and the laws were administered in each by the same description of courts, one of which was the county court. Under this condition of things, it is obvious that it was unnecessary for the will of said William Smith to be probated in more than one county over which the jurisdiction and authority of the government of Virginia at Richmond was maintained. And the person who qualified as executor of the probated will, and in the same court that admitted the will to probate, might as right
1. That sections twenty-two, twenty-six and thirty ot the Code be amended and re-enacted so as to read as follows :
“22. The circuit and county courts shall have jurisdiction to hear and determine suits and controversies concerning wills, according to the following rules, that is to say, in the county wherein the deceased has a mansion house, or known place of' residence; if he has no such house or place of residence, then in a county wherein any real estate lies that is devised or owned by the decedent; and if there be no' such real estate, then in the county wherein he has estate.
“26. In every such proceeding the court may require all testamentary papers of the same decedent to be produced. If any person interested ask it, it shall order a trial by jury, to ascertain whether any, and if any, which of the papers produced be the will of the decedent; and if no such trial be asked, shall proceed without it to decide the question .of probate. The court shall make a sentence or final order as to the probate, and certify the same to the clerk of the county court.
“ 30. Every will, or authenticated copy thereof, admitted to probate under the provisions of this chapter, shall be recorded by the clerk of the court in which the pro*622 bate was had, and when recorded, shall remain in the ■office of such court, except when removed therefrom.
“ 2. This act shall be in force from- its passage.”
This act does not repeal or amend expressly any section or part of said chapter seventy-seven of the Code, except said twenty-second,- twenty-sixth and thirtieth sections of said chapter. And it was manifestly the intention of the Legislature, in amending and re-enacting said sections, that they shall, as amended and re-enacted, be considered ,as constituting a part of said seventy-seventh chapter of the Code, and occupying the same position as sections of said chapter as they occupied before the passage of said act. The amendment and reenactment of one section of a chapter of the Code, cannot be regarded as necessarily repealing the other sections of that chapter in the absence of a repealing clause, ' though the section amended and re-enacted may in some cases be properly construed as operating such repeal by implication. I have before quoted the fifth section of chapter one hundred and eighteen of the Code of 1868. And although the second clause of that section became inoperative from the 1st day of January, 1873, because at that time the office of recorder in this state ceased to exist, still I am not aware that the first clause of that section has ever been repealed, and I see no valid reason why it may not be considered as still in force for necessary and proper purposes. But, be this as it may/the court must construe a statute in accordance with the legislative intent, since it must always be presumed that the legislature designed the statute and each section thereof to take efiect, and not be a nullity. In considering- a statute with a view to its interpretation, the thing which we are to seek is the thought which it expresses. The whole of a statute is to be examined with a view of arriving at the true intention of each part. A section or clause standing by itself may seem of doubtful import? and yet may be made .plain by comparison with other sections or clauses, or portions of the same law. '-‘If
For reasons hereinbefore stated, the second error assigned by the plaintiff is not well taken and is overruled.
It further appears by the said bill of exceptions that
The defendant then offered in evidence certified copies from the clerk's office of the county court of Greenbrier county, of a deed and certificate of acknowledgment from said John W. Jones, executor, &c., to the defendant, (which deed it is admitted embraces the land in controversy), to the admission of which the plaintiffs objected, but the court overruled said objection, and admitted the same, and the plaintiffs again excepted, and said copies were read to the jury as evidence, and they are in the words following:
“ This indenture, made this 11th day September, 1863, between John W. Jones, executor of William Smith, deceased, of the first part, and Thos. A. Henning, on the second^part, witnesseth:
*627 That in consideration of $3,355 in band paid the said Jones, executor as aforesaid, by the said Henning, the said Jones, executor as aforesaid, doth grant, bargain and sell unto the said Henning the following lots, parts or parcels of land lying and being in the county of Green-brier, near Lewisburg, to-wit: Lot containing two and three-quarter acres, more or less, and bounded as follows: Beginning at a stake corner to- Joel McPherson, and with his lot south 35° west 22 poles and 7 links to a stake on alley; and with said alley south 55° east 20 poles and 4 links to stake corner to Jno. A. Hunter; and with-north 35° east 22 poles 7 .links to stake corner to Jno. Withrow; and north 53° west 20 poles, 4 links, passing Withrow’s corner at 19 poles, 14 links, to the beginning. Second, lot, containing eleven and one fourth acres, more or less, adjoining the lands of Mrs. Preston, &c.: beginning at a corner to certain lots, south 45° east 43|- poles to a stake, and with Mrs. Preston’s line south 41° west 40 6-10 poles to two black oaks near a house, and with ' said Preston north 45° west 47 poles to a stake on Preston’s line, corner to J. W. Dunn, and with Dunn, in part, north 45° east 40 poles to the beginning ; being the same lot of land conveyed by M. Mc-Clanahan to the said William Smith, deceased, by deed bearing date July 15th, 1845, to which reference is here had. Third, lot, containing two acres, more or less, adjoining the last mentioned lot, bounded on the north by the Mathew road, on the south by the aforesaid lot, on the west by S. S. Hoover’s lot, being the same lot conveyed by Peter L. Anderson, to the said William Smith, deceased, by deed bearing date November 21, 1860, to which reference is here had. To have and to hold the aforesaid lots or parcels of land, and their appurtenances, &c., the said Thomas A. Henning, his heirs and assigns forever.
(Signed) John W. Jones, [Seal.]
Executor of, Wm. Smith, deceased.”
*628 “Clerk’s Office of GreeNbrier CotjNty Court, \ September, 11, 1863. j
This deed was this day piesented in the office, and the execution thereof being duly acknowledged by John W. Jones, executor, the vendor, is admitted to record.
Teste: Joel McPheskoN, Clerk.”
The third error assigned by the plaintiffs, is divided into three divisions, and for the sake of convenience, I will consider said divisions consecutively. “ However, it may have been formerly, now it is established in the United States, as a general rule, that if it be necessary to sue for the rights of a decedent to personal property such suit can only be maintained by a person to whom there has been granted probate of the will or administration of the estate of such decedent. And a grant of probate or administration in a state different from that in which the suit is brought, will not be sufficient, unless it be allowed by some particular statute or usage in the state wherein the estate may be.” 1 Rob. Prac., (new) 161. Gibson, C. J. in Motland v. Wierman, 3 (Pa.) Penrose & Watts; Miller’s estate, 3 Rawle, (Pa.) 319. “The reason equally applies when an executor or administrator who has qualified in one state, proceeds by virtue of that qualification to sell goods left by his decedent in another state. If for example, an executor who has qualified in Delaware, sell goods left by his decedent in Maryland, and afterwards there be a grant in Maryland of administration with the will annexed on the estate of the same decedent, the administrator under this last grant may maintain an action of trover against the executor for the value of the goods.” 1 Rob. Prac. (new) 161, 162. Glenn v. Smith, 2 Gill. & Johns., 506, 507. While all this is true, as a general rule, still on the principles settled by this Court in the cases of Clay v. Robinson, adm’r, 7 W. Va. R., 348; Harrison’s ex’r. v. Farmer’s Bank, of Virginia, 6 W. Va„ 1; opinion of Paull, Judge, Henning v. Fisher, id., 238. The will of said William Smith
The power to sell given by the will, is .not recited in the deed to defendant, and it is insisted this fact renders said deed of no effect. In Perry on Trusts, 2 vol., 2 ed., §511c, it is said: “ The donee of a power tnay execute it without expressly referring to it, or taking any notice of it, provided that it is apparent from the whole instrument that it was intended as an execution of a power. * * The intention to execute a power will sufficiently appear (1) when there is some reference to the power in the instrument of execution; (2) when there is a reference to the property which is the subject matter on which execution of the power is to operate, and (3) when the instrument of execution would have no operation, but would be utterly insensible and absurd, if it was not the execution of a power.”
In the 4th vol. Cruise Digest, page 168, it is said: “An instrument may operate as a revocation and appointment, without any recital or mention of the power. For if the act done be of such a nature that it can have no operation, unless by virtue of the power, the law will resort to the power and thereby give validity to the instrument, upon the principle that quando non valet quod ago cet a,govaleat quantum volere potest.” Peate v. Spieren. et al., 2 Desaus. Ch. Rep., 460; 3 Johns. Ch. Cases, p. 551 and cases there cited. Andrews v. Emmett, 2 Brown Ch. Rep., 231 and 236 top p. and 300 side p.; Bennett v.
It further appears by said bill of exceptions, that the plaintiffs proved that the sale aforesaid, by Jones, executor, &o., to the defendant was made for treasury notes of the late' confederate states, and that at the time of said sale, it took |12 of said notes to parchase $1 in gold, and that at the time the said Jones, executor, &c., and the plaintiffs, Agnes M. Smith and Elizabeth J. L. Jones, resided in the county of Bedford, in the State of Virginia, and that the defendant resided in Greenbrier, county, West Virginia, where said deed was executed, delivered and recorded.
“State of West Virginia,
“Recorder’s Office, April 2, 1872.
“John W. Jones, having departed this life more than three months since, and no one having applied for administration of his goods and chattels, on the motion of Sarah R. Duffy, by her counsel, it is ordered that Alexander Knight, sheriff of Greenbrier county, do take the estate of the said decedent into his possession and administer the same according to law.
Teste:
Geo. H. Lewis, Recorder.
The plaintiffs also proved that the plaintiffs, except the said Alexander Knight, were the devisees mentioned in the will of said William Smith, deceased.
The plaintiffs then moved the court to exclude as evidence the deed from said Jones, executor, &c., to the defendant, but the court overruled said motion, and the plaintiffs again excepted.
These being all the facts proved on the trial, the plaintiffs moved the court to instruct the jury as follows :
“First. If the jury believe from the evidence that the dwelling house of William Smith was in Greenbrier county, and all the real estate owned by him at the time of his death was in the counties of Greenbrier and Nicholas, West Virginia, and that he was only temporarily absent from his dwelling house in Greenbrier county at the time of his death, in Bedford county, then the will of said Smith was not properly admitted to record in Bedford county, Virginia, and the admission of a copy of said will from said record in Bedford in this court, did not make said said copy evidence in this cause.”
*636 “Second. That if the land in controversy was not sold by Jones, executor, &c., for the payment of debts of the testator, and the defendant had notice of that fact, then under the will of said Smith, the said executor, as such, had no authority to sell the land sued for in this suit.”
“Third, that if John W. Jones didnotqualify as executor of said Smith, in this state, at the time or before the sale of the land to .the defendant, mentoined in this action, or before the execution and delivery of the deed for said land to the defendant, then they must find for the plaintiffs.
And the court refused to give either or any of said instructions, and the plaintiffs excepted.
Under the views and principles hereinbefore enunciated and declared, I do not think the court erred in overruling- the plaintiffs motion to exclude the said deed from Jones’ ex’r &c., to the defendant, from the jury as evidence. The 72 chapter and 1 section thereof, of the act of the Legislature of this state, approved on the 31st day of March, 1873, provides, in substance that so far as applicable to this case any act or deed done and performed by any executor, administrator or other fiduciary, in any of the counties of this state, in which the re-organized government of Virginia or the government of West Virginia, was not in operation or in force between the 17th day of April, 1861, and the time of the organization of this state, who qualified as such executor or fiduciary in the state of Virginia, shall have the same force and effect as though said executor or fiduciary had qualified under the restored government of Virginia or under the government of West Virginia. There is a proviso to said section of said act, but I do not deem it material to notice it here. I have already ascertained and determined in effect, that the provisions of said section applicable to an executor and administrator, was the law before the passage of said section of said act, and it is, therefore, unnecessary to inquire or consider for the purposes of this case, whether said section, so far
The action of the court, however, in refusing to give to the jury the second instruction prayed by the plaintiffs’ counsel, presents for consideration a very important, as well as interesting question of law, and which is not without difficulty. The sale made by the said Jones to the defendant, as well as the the said deed, was evidently predicated alone upon the power given by thelastclause of the said will. That clause confers upon the executor a mere power, and not a power coupled with an interest. The legal title to the lands did not, by virtue of said clause, pass to the' executor, but it passed otherwise by express devise contained in the will. Bells, adm’r., v. Humphrey, 8, W. Va. R. 1, 5, 15, 16, 17, and authorities there cited. Powell in the 1 vol., 3 ed., of his work on devises, says, “ A naked authority is when a man devises that his executors shall sell his lands; or orders that his lands shall be sold by his executors; or appoints constitutes and empowers A and B, whom he makes his executors of his last will, to sell, let, or set to sale, his estate.” Perry, in his work on trusts, vol. 1, 2 ed., §308, says, “ A mere charge of debts and legacies on real estate will not vest the estate in the trustees, unless there is some direction to them to raise the money and pay them, or unless there is some other implication that they are to exercise an active trust for the purpose. * * If a testator give his trustees a simple power of disposing of his estates, or that his executors or trustees, or other persons, shall sell or let to mortgage, or otherwise dispose of his estate to pay his debts or legacies or annuities, or other
The case of Lake v. Marshall, &c., reported in 5 J. J. Marshall's (Kentucky) R., 353, was an action at law. The action was detinue for the recovery of slaves sold by the executrix. In that case, Chief Justice Robertson, in delivering the opinion of the court says, at p. 356, “As the will gave to Mrs. Marshall no power to sell any of the property, except for the payment of the testators debts or for the completion of his house, it necessarily follows, that her bill of sale, of two of the slaves to the appellant, vested in him no title after her death, if she
The said second instruction prayed by the plaintiffs, and refused by the court, is not as well prepared as it might have been, but I think for the reasons herein-before stated, that it substatially declares the law, and that it was relevant to the case as presented, and that the court erred in refusing to give said second instruction so prayed by the plaintiffs. It further appears that, after the jury returned their verdict in favor of the defendant, the plintiffs moved the court to set the verdict aside and grant them a new trial, because the court admitted improper evidence and refused to give either of the instructions asked for by the plaintiffs, which motion the court overruled.
JUDGMENT Reversed and case remanded.