85 W. Va. 673 | W. Va. | 1920
The principal subject of this complaint is a provisional or temporary decree for payment of money by an executor, out of the estate in his hands for support of the widow of the testator, upon allegations of her right thereto under provisions of the will. Another is the elimination of certain portions of the answer to her bill, upon exceptions thereto.
The provisional decree was entered in advance of maturity ■of the cause for submission upon issues made and proof taken, and is based in part upon notice of a motion for award thereof, supported by affidavits.
By the will, the widow took a life estate in the homestead, a house and lot in the City of Fairmont, and in the household goods and effects. At her death, this property goes to the grand-daughter of the testator, daughter of the executor. By the fourth clause of the will, the executor was required to rent another parcel of real estate of which the testator died seized, a
Tbe real estate mentioned in tbe fourth paragraph has not been sold. Tbe bouse has four rooms and a basement and rents for only $12.50 per month. Tbe executor owed tbe estate $1,000.00, of which be has paid $300.00, and tbe residue be has lately invested in government bonds. Out of tbe rents and interest, tbe executor has paid tbe taxes on the rented property and tbe cost of some slight and apparently necessary repairs. According to tbe allegations of ber bill and copies of tbe executor’s settlements exhibited therewith, she has received only a small amount of money annually, and, out of that, has paid tbe taxes on the homestead. . She alleges that what she has received has been wholly insufficient for ber support, and claims she is entitled to have at least $600.00 per year out of the estate. Her husband died in 1910 and this suit was instituted about eight years after tbe probate of bis will. Tbe date of ber first complaint of the amount she received from year to year does not appear in tbe bill nor elsewhere in the record. Her bill charges tbe executor with neglect to obtain as much rent from tbe real estate as it should yield and wrongful expenditure of rents in tbe improvement of tbe property, with a motive of benefit to himself, bis wife and daughter.
Demurrers to the bill, interposed at tbe May term, 1919, were overruled, and thirty days allowed for tbe filing of answers. No answer having been filed at tbe expiration of that period, there was a motion for a decree upon tbe bill as taken for con
No good ground of demurrer to the bill is perceived. It alleges a state of facts, which if sustained, constitutes a cause of action. A court of equity has undoubted jurisdiction to enforce a trust.
The retained portions of the answer deny the construction placed upon the will by the plaintiff’s bill; failure.on the part of the executor to carry into effect its true intent, meaning and provisions; his neglect, failure or refusal to pay out of the. estate sums sufficient for the comfort and support of the plaintiff, within the meaning and intent of the will; rental of the real estate for an inadequate sum; the making of unusual or extensive repairs or improvements of the property; the correctness and accuracy of the statements of the bill as to receipts and disbursements respecting the property; mismanagement of the properties mentioned in the fourth and fifth paragraphs of the will; insufficiency of the income for complete comfort of the plaintiff; necessity of payment of $600.00 per year for her comfort and support; duty of the executor to pay the taxes on the homestead; unfaithfulness in the administration of the estate;, administration thereof for the benefit of the remaindermen and residuary legatees; and indifference to plaintiff’s complaints and unwillingness to hear them.' It avers production of all the income of which the property is capable; possession under the will, of a well furnished home, by the plaintiff; activity and ability on the part of the plaintiff and lack of any misfortune or other circumstance necessitating her use of $600.00 per year from the estate.
Although the amounts of the annual payments are quite
In England they have an informal procedure started by what is termed an “Originating summons.” Dan. Chy.. Pr., p. 864. But, under it, no such question as this is cognizable. This is a controversy with the remaindermen and residuary legatees, as well as with the executor. The plaintiff asserts her right to go into the corpus of the .fund and property for her support, upon the theory of inadequacy of the income, which she may do, if the income is inadequate. Her right to do so is denied upon the theory of adequacy of the income. That makes an issue that cannot be disposed of summarily, like an allowance to an infant or cestui que trust out of his own funds. Royle v. Hayes, 43 Chy. Div. 18; Conway v. Fenton, 40 Chy. Div. 512; Davies v. Davies, 38 Chy. Div. 210.
The cross-assignment of error based upon denial of a decree on the bill, for failure to answer within the time allowed, is not well taken. Whether the extension of time allowed by the court was proper or not, the answer came in before final decree, raising issues of fact determinable in part by matters of fact depending upon evidence, and none had been taken. In Waggy v. Waggy, 77 W. Va. 144, the. plaintiff had taken and filed his depositions sustaining the allegations of his bill, and the cause could not be continued for the taking of proof by the defendants. Right to answer at any time before final'decree is given by the statute, and a defendant in default as to his answer may file it within such time. Waggy v. Waggy. Had the motion for enlargement of time been denied, a sufficient answer to prevent a decree might have been filed immediately. Hence, it cannot be safely said the motion for a decree put an end to the right, to answer. To cut off that right, the decree must have been actually entered. Ash v. Lynch, 72 W. Va. 238.
All material matters struck out of the answer, upon the. exceptions thereto, were merely evidential, wherefore they were.
Eor the reasons stated, the decree of August 6; 1919, entered in this cause, will be reversed, and the decrees therein of May 12th and July, 28th 1919, and so .much of the decree therein of June 25, 1919; as overruled the plaintiffs motion for a decree, will be affirmed. Costs in this court, will be decreed to the appellants and the cause remanded.
Reversed in part. Affirmed in part. Remanded.