138 W. Va. 144 | W. Va. | 1953
Lead Opinion
These actions of debt were brought to this court by writs of error to judgments of the Circuit Court of Cabell County. The State of West Virginia, who sued for the use and benefit of the Baltimore and Ohio Railroad Company, a corporation, brought two actions of debt, one against Duncan W. Daugherty, Administrator of the estate of Josephine M. Stringer, and the Aetna Casualty and Surety Company, a corporation, the surety on such administrator’s bond, and the other against Duncan W. Daugherty, administrator of the estate of Jesse P. Stringer and the Aetna Casualty and Surety Company, the surety on his bond as such administrator.
The object of these actions of debt is to recover from the administrator two judgments rendered by the Circuit Court of Cabell County for court costs awarded in two certain actions hereinafter- mentioned.
The trial court sustained demurrers to the declarations herein with leave to the plaintiff to amend. Upon the plaintiffs declining to amend the declarations, the actions were dismissed. Plaintiffs prosecute this writ of error.
Duncan W. Daugherty was appointed administrator of the estate of Josephine M. Stringer and Jesse P. Stringer by the County Court of Cabell County, West Virginia, on the 22nd day of March, 1948. Two bonds were given by such administrator, each in the penal sum of $5000.00.
After the qualification of such administrator, he employed an attorney to bring two actions against the Baltimore and Ohio Railroad Company for allegedly causing the death of his decedents by wrongful act.
The decedents lost their lives in a collision at a grade crossing between an automobile in which they were riding and one of the trains of the Baltimore and Ohio Railroad Company. For additional facts concerning such accident, see opinion of this court in the two cases of Dun
The pertinent facts which we have been able to glean from the meager record before us are as follows: Daugherty, Administrator of Josephine M. Stringer, recovered a jury verdict in the amount of $3600.00, and a judgment was entered thereon by the Circuit Court of Cabell County on the 3rd day of January, 1950. In the case of Daugherty, Administrator of Jesse P. Stringer, the plaintiff was awarded a jury verdict in the amount of $1000.00, and judgment was entered thereon on the 11th day of March, 1950.
On petition of the Baltimore and Ohio Railroad Company, a writ of error and supersedeas to each of the judgments above was awarded by this court. Upon the hearing, the cases were consolidated, heard together, and reversed. The verdicts above mentioned were set aside and a new trial awarded. See Duncan W. Daugherty v. Baltimore and Ohio Railroad Company, supra.
The Circuit Court of Cabell County, upon the mandate of this court, entered two judgments for costs in favor of the Baltimore and Ohio Railroad Company. In the case of Daugherty, Administrator of Josephine M. Stringer, the Circuit Court entered a judgment for the sum of $978.65, and in the case of Daugherty, Administrator of Jesse P. Stringer, against the Baltimore and Ohio Railroad Company, the Circuit Court of Cabell County entered judgment for $766.75. It was provided in the judgment orders that both judgments should be paid out of any funds in the possession of the administrator belonging to the respective estates. Executions were issued on each of such judgments, and placed in the hands of the Sheriff of Cabell County who returned the executions, “No property found”.
It is alleged in the declarations in the instant cases that money belonging to the estates, amounting to the sum of $5874.13, came into the hands of the adminístra
On a date not disclosed by the record, the administrator made an accounting before a Commissioner of Accounts of Cabell County, who ordered the administrator to pay the surplus to the distributees after payment of certain claims and costs of the administration. The County Court of Cabell County confirmed such report and entered an order showing such confirmation. According to the record, the administrator complied with the order of the county court.
The records of the two actions here considered are identical except as to the amounts of judgments entered on thé jury verdicts, the dates of the return of the verdicts and the rendition of such judgments in the first two actions, and the amounts of the judgments rendered for costs, upon the mandates of this court.
The two judgments not having been collected, the plaintiffs in the instant actions brought these actions of debt to recover damages for a breach of the conditions of the administrator’s bond, assigning as breaches of such condition, (1) that the administrator did not faithfully discharge the duties of his office as administrator, and (2) did not account for or pay over, as required by law, all money that came into his hands by virtue of his office as administrator- of the two estates.
The defendant demurred to the plaintiff’s declarations and assigned nine grounds of demurrer, most of which have no bearing on the real question at issue. The first ground is: (1) That the declarations failed to charge a breach of the conditions of the bond. The trial court sustained the demurrers to the declarations as herein-above stated.
In the briefs filed, counsel for the administrator cited one case, Wingfield v. Neall, Trustee, 60 W. Va. 106, 54
Code, 44-2-28 provides for the exoneration of a personal representative from personal liability upon the happening of certain events mentioned in that statute. We cannot say however, from the record before us, whether such statute applies to the instant case.
The claim of the plaintiff, as above stated, is founded upon the judgments for court costs accruing by reason of the two actions at law originally instituted by the administrator under Code, 55-7-5, 6. Section 6 id reads in part as follows: “Every such action shall be brought by and in the name of the personal representative of such deceased person; and the amount recovered in every such action shall be distributed to the parties and in the proportion provided by law in relation to the distribution of personal estate left by persons dying intestate. * * * and the amount so recovered shall not be subject to any debts or liabilities of the deceased. * * * ”
In the body of the opinion in Wilder v. Transit Co., 120 W. Va. 319, 197 S. E. 814, this language appears: “Here, the claim asserted [for damages for death by wrongful act] never was owned by the decedent. It was prompted into being by virtue of decedent’s death. By no stretch of the legal imagination, we think, can the recovery claimed be said to be a part of the decedent’s estate.” See Richards v. Iron Works, 56 W. Va. 510, 511, 49 S. E. 437; Thompson v. Mann, 65 W. Va. 648, 650, 64 S. E. 920; Peters v. Trust Co., 118 W. Va. 484, 191 S. E. 581. In Petty v. Carroll, 118 W. Va. 401, 190 S. E. 683, the following language appears: “Under Code, 55-7-6, an action for wrongful death is for the exclusive benefit of the decedent’s next of kin; and while the decedent’s administrator alone may sue, his relation to any fund
In the instant cases, no recovery was had, but had there been a recovery, we do not think it would have been a part of decedent’s estate.
It may be said that cases in other jurisdictions have held that the sureties on a personal representative’s bond are liable for the proper administration of the amount which such personal representative recovers for decedent’s death by wrongful act. See Watkins v. Purnell, (Ark.) 62 S. W. 2d 20; Patterson v. Tate, (Tenn.) 213 S. W. 981.; United States Fidelity & Guaranty Co. v. Decker, (Ohio) 171 N. E. 333; Aetna Casualty & Surety Co. v. Young, (Oklahoma) 231 P. 261; Boyd v. Ritchie, (S. C.) 155 S. E. 844; Vukmirovich v. Nickolich, (Minn.) 143 N. W. 255; Goltra et al. v. The People, Use, etc., 53 Ill. 224. But the case of Thompson v. Mann, supra, tends to show that this court did not reach the same conclusion in that case as disclosed by opinions in the cases just cited from other jurisdictions.
It is not necessary to a decision in this case to determine whether a personal representative and the surety on his official bond are liable for proper administration of a fund recovered by him in an action for damages on account of the death of his decedent, since there was no recovery and the question does not arise here. We express no opinion on that question.
We have adverted to the question of liability of a personal representative and his surety on his official bond in order to point out the status of a claim against the estate for court costs incurred in an action brought to recover damages for the death of his decedent.
The principles governing the disposition of the actual issue in this case are discussed and settled' in the case of Thompson v. Mann, 65 W. Va. 648, 64 S. E. 920. The factual basis of the decision in the case of Thompson v.
In the first opinion, the original bill was held insufficient on the grounds that the exhibits with the bill showed that the judgment was against Mann individually and was not enforceable against Flanagan, the surety on Mann’s official bond.
In the second opinion, the first point of the syllabus reads as follows: “The general rule, subject to few exceptions, is that a personal representative can not charge the estate by contracts originating with himself, although for the benefit and in the interest and on behalf of the estate, such contracts binding him only in his private capacity.’’ It was also held in the second opinion that a judgment de bonis testatoris is no lien or charge upon money recovered on account of the death of a decedent by wrongful act, neglect or default.
In the body of that opinion, this language appears: “ ‘In causes of action wholly accruing after his decedent’s death, the personal representative is in general liable individually * * * And wherever an action is brought against an executor or administrator, on promises said to have been made by him after the decedent’s death, he is chargeable in his own right and not as representative;’ Whatever action was taken by the administrator in instituting the two actions against the Baltimore and Ohio Railroad Company, and incurring court
In accordance with the principles enunciated in the second Thompson opinion, we are of the opinion that the defendant in the instant cases, as personal representative, and the property belonging to the respective estates are not liable for costs incurred by the administrator in the actions for their allegedly wrongful deaths. It is said in that opinion that this rule seems to be a wise one, since it protects the estate against waste and extravagance of a personal representative. It follows that the declarations in the instant actions fail to allege breaches of the official bonds of the administrator and upon the plaintiffs’ failure to amend, the actions were properly dismissed.
The opinion in the second Thompson case indicates that where personal representative makes expenditures of the nature here considered, he is entitled to reimbursement out of the estate, but as to that question, we express no opinion.
Accordingly, the judgment of the Circuit Court of Cabell County, being without error, is affirmed.
Affirmed.
Dissenting Opinion
dissenting:
I can not agree to the decision of the majority of this Court in the instant cases which, in my opinion, is not only clearly erroneous but also creates uncertainty and confusion in the administration and the settlement of estates of decedents in this jurisdiction and, by imposing personal liability for costs upon a personal representative who unsuccessfully prosecutes an action for the wrongful death of his intestate, in effect renders inoperative the provisions of Sections 5 and 6, Article 7, Chapter 55, Code, 1931, which respectively create a cause of action
As pointed out in the majority opinion, in the decision of the cases of Daugherty, Administrator of the personal estate of Josephine M. Stringer, against The Baltimore and Ohio Railroad Company, and Daugherty, Administrator of the personal estate of Jesse P. Stringer, against The Baltimore arid Ohio Railroad Company, 185 W. Va. 688, 64 S. E. 2d 231, which were consolidated and heard together in this Court, judgments in favor of the administrator for $3600.00 and $1000.00 respectively were reversed and, under the mandate of this Court, the Circuit Court of Cabell County entered a judgment for costs against the administrator of Josephine M. Stringer for . $978.65 and a judgment for costs against the administrator of Jesse P. Stringer for $766.75, each of which expressly provided that the amount of the judgment should be paid out of the funds of the estate of the decedent in the possession of the administrator. The mandate in each case, entered March 21, 1951, is identical, except the amount of the costs and the name of the decedent, and in the Josephine M. Stringer case contains this language: “It is therefore considered and ordered by the Court * * * that the plaintiff in error”, the Baltimore and Ohio Railroad Company, “do recover of and from the defendant in error, Duncan W. Daugherty, Administrator of Josephine M. Stringer, Deceased, out of any funds in his possession as administrator, its costs about the prosecution of its writ of error and supersedeas in this Court in this behalf expended.” In each ease this Court, by the quoted language, finally and definitely adjudicated and determined the question of costs between the parties, held the estate of each decedent liable for such costs, and ordered that they be paid out of the funds of the estate in the possession of the administrator.
The general rule is that when a question has been definitely determined by this Court the decision is conclusive
As the question of the liability of the estate in each case was finally settled between the administrator and the railroad company which, though not a formal party, is the real and beneficial plaintiff in the present actions, that question, as to each of them, is res judicata, and this Court, instead of ignoring its former solemn holding on that point, should have applied that fundamental principle of law in these actions. By its holding in the present actions that the assets of the estate of each decedent are not liable for the costs formerly adjudicated
But the effect of the present decision is even more disturbing than the result just indicated. By holding, contrary to the decision in the Daugherty cases, that the estate of a decedent whose death is caused by wrongful act, neglect, or default of another person is not liable for costs in an unsuccessful action prosecuted by the administrator under Sections 5 and 6, Article 7, Chapter 55, Code, 1931, and that the administrator is personally liable for such costs, and, by clearly indicating, though not directly deciding, that the amount recovered in a successful prosecution of such action is not a part of the estate of such decedent, the Court, in effect, nullifies those sections of the statute and renders the statute practically useless and ineffective.
If an administrator of the estate of a person whose death results from the wrongful act, neglect, or default of another person, must assume liability for costs by underwriting the ultimate success of an action against the wrongdoer which the statute, by necessary implication, requires him to bring, few, indeed if any, persons acting in that capacity will bring such action. When the statutory beneficiaries of a recovery are infants, or other persons under legal disability, as frequently happens, the administrator can not be indemnified by them against his personal liability for costs if unsuccessful and in many instances in which such beneficiaries could legally provide indemnity they would be unwilling to do so. Yet the administrator who declines to bring such action, which Section 6 says “shall be brought by and in the name of the personal representative of such deceased person;”
Though the decision of the majority finds support in the prior decisions of this Court cited in the majority opinion, the reasoning and the conclusion reached in those cases that the funds recovered or recoverable in an action by an administrator for the wrongful death of his decedent are not a part of his estate are unsound and such decisions are contrary to some decisions on that point in other jurisdictions. The decisions on which the majority principally relies are Wilder v. Charleston Transit Company, 120 W. Va. 319, 197 S. E. 814, 117 A. L. R. 948; Fetty v. Carroll, 118 W. Va. 401, 190 S. E. 683; and Thompson and Lively v. Mann, 65 W. Va. 648, 64 S. E. 920, 22 L. R. A., N. S., 1094, 131 Am. St. Rep. 987. Those cases adhere to the view, which I think is erroneous, that any fund recovered by an administrator in an action for the wrongful death of his decedent is not a part of the estate of such decedent. A question is never finally settled until it is rightly decided; and the hope that the question dealt with in the three last cited cases may eventually be correctly decided by this Court or be so resolved by legislative enactment and the existing confusion and uncertainty in the final settlement of the estates of such decedents removed is the compelling reason for this dissent.
In Wilder v. Charleston Transit Company, 120 W. Va.
Even if the deceased by will has made a different disposition of his personal property than that provided by the statute of descent and distribution for personal property of an intestate, the personal representative of the deceased, in his official capacity, would be required to
In Thompson and Lively v. Mann, 65 W. Va. 648, 64 S. E. 920, 22 L. R. A., N. S., 1094, 131 Am. St. Rep. 987,. the principal point in controversy involved the claim of the plaintiffs for attorney fees against the estate of a decedent. The defendant Mann was the administrator of the estate and had employed the plaintiffs to assist him in the successful prosecution of an action for the recovery of damages for the wrongful death of his intestate. This Court correctly held that the contract by which the administrator employed the plaintiffs did not charge the estate of his decedent but instead was binding on the administrator only in his private capacity and that a judgment, based on such contract, could not be enforced against the estate of the decedent or against the surety on the bond of the administrator.
Though it was not necessary to do so, in disposing of
The liability here asserted against the administrator in his official capacity for the costs in the two actions brought and unsuccessfully prosecuted by him against the railroad company, however, does not arise from or depend upon any contract made or attempted to be made by him but, on the contrary, was imposed upon him in his official capacity without his assent and against his will by the solemn mandate of this Court in each of those actions. Consequently the rule of the Thompson case and the other cited cases, under which the majority holds the administrator personally liable for costs which were previously adjudicated by this Court- as a liability of the estate of his decedent, has no present application.
In the Goltra case the administratrix of her deceased husband was paid compensation for his wrongful death. She refused to account to the children of the decedent for any portion of the money collected and suit was instituted in their behalf to recover their share against the administratrix and the sureties on her bond. The defendants denied liability on the ground thát the money was not assets in the hands of the administratrix. In rejecting that ground of defense the Supreme Court of Illinois said:
“This position is wholly untenable. It is true, the creditors of the estate are entitled to no portion of this fund, and it is recoverable only for the benefit of the widow and next of kin; but when the sum is recovered by suit, or voluntarily paid under the statute, as in the present case, it is as much assets in the hands of the administrator, as if recovered for the benefit of creditors. The statute provides that the personal representative of the deceased, to-wit, the executor or administrator, shall bring the suit, and how he shall distribute the amount recovered. When he has collected it, he holds it in his fiduciary capacity, as much as any other monies of the estate, and he has not truly administered the estate, until he has paid over the fund to the proper distributees. His sureties undertake for his performance of this part of the duties of his office, as much as for any other.”
In the Patterson case the Supreme Court of Tennessee held that the fund received by the administrator of children killed by a railroad company in settlement of claims for their wrongful death constituted part of their estate
“By the third assignment of error it is insisted that the court of civil appeals erred in not holding that the judgment against the administrator and complainants, as his sureties, was void, because the fund received by said administrator from the railroad company in settlement of claims against it for the wrongful killing of the intestates of said administrator did not constitute any part of the estates of said intestates, and the sureties of the administrator could not, therefore, be held responsible for the same.
“We think this assignment of error is wholly without merit.”
The majority opinion cites the Goltra and Patterson cases and also cites the cases of Watkins v. Purnell, 187 Ark. 837, 62 S. W. 2d 20; United States Fidelity and Guaranty Company v. Decker, 122 Ohio St. 285, 171 N. E. 333, 68 A. L. R. 1538; Aetna Casualty and Surety Company v. Young, 107 Okla. 151, 231 P. 261; Boyd v. Richie, 159 S. C. 55, 155 S. E. 844; and Vukmirovich v. Nickolich, 123 Minn. 165, 143 N. W. 255, as authority from other jurisdictions to sustain a view contrary to that reached in the Thompson case and adhered to by the majority in the present actions. In the cases just cited, nothwithstanding statements in some of the opinions to the effect that the fund recovered by a personal representative in an action for damages for the wrongful death of his decedent is not part of the assets of his estate, it was uniformly held that the sureties on the bond of the personal representative were liable for the improper administration of the amount so received by the personal representative.
The utter fallacy in the statement in the opinions in ■ the Wilder, Fetty, Thompson and Richards cases that the relation of the administrator to the fund when recovered, in an action for wrongful death is not that of the repre
“The statutes provide that this suit to recover this money shall be maintained by the personal representative, an officer of the Court, and in this case the personal representative is the administratrix of the estate of A1 Young, deceased. It was the statutory duty of the ad-ministratrix in her official capacity as administratrix, and not otherwise, to maintain this action. The right and duty to maintain the action includes the right and duty to collect and receive into her own hands, for distribution, the moneys which the action is brought to recover. Having been appointed such administratrix, no officer or person other than she could do so, and she could do so only in her official capacity. Now the surety company on the bond says to us that she must distribute the fund, not in her official capacity, as administratrix, but as a statu-' tory trustee. Why, the only statutory trustee we have here is the administratrix and she is an officer of the Court. If it be otherwise, then such statutory trustee of this fund is not an officer but an unsworn, unbonded private person who played the part of an officer of the Court in exercising the power to collect and ipso facto becomes a private person to distribute funds in his official hands. Was it the intention of the lawmakers to grant this power to collect to one, as an official, and then with the money in her hands make no requirement that as an official she distribute tfie same? Holding the money as an official, does she distribute same as a private person? No, for in that same capacity in which she received, so in that capacity must she distribute. Then she disburses as an officer, and nowhere in relation to these matters was but one office created by law, and that office was labelled administratrix, the office by authority of
“If our theory of the liability of the surety is erroneous, why did the lawmakers enact into Section 824 the provision that this suit should be maintained only by the administrator if one were appointed ? Why were they not content to let the widow or the next of kin themselves maintain this action in their own names? * * *. Boldly stands out the only plausible reason, to wit, that they desired to give the heirs the protection of a bonded officer.”
Under the law as enunciated in the Goltra and Patterson cases and as I consider it to be, the anomaly of the duality of a personal representative as a fiduciary in his official capacity to collect compensation for the wrongful death of his decedent and ás a private unsworn un-bonded person in its distribution would not be recognized or permitted to exist and the personal liability for costs, imposed upon a personal representative who, in the performance of his statutory duty to bring an action for the wrongful death of his decedent, fails to obtain a recovery would be eradicated and removed; the recovery in a successful action by a personal representative of damages for the wrongful death of his decedent would be assets of his personal estate to be administered by the personal representative as the other personal property of the estate is administered by him except that such recovery, administered by him in his official capacity, would be distributed to the persons designated in, and free from debts and liabilities of the decedent as provided by, the statute relating to an action for wrongful death; and, in the event the prosecution of such action by the personal representative should be unsuccessful, the personal estate of the decedent, rather than the personal representative
The principal purpose of the general rule that the contract of an administrator involving a transaction which originates after the death of his intestate is not binding upon his estate is to protect the estate against liability created in that manner. As the liability for costs adjudicated in an unsuccessful action by an administrator for the wrongful death of his decedent does not result from or depend upon any contract by the administrator but is imposed by court order entered without his assent and against his will, there is no sufficient reason for affording immunity from such costs to the estate
The facts in the present actions show that the administrator of each estate, when he brought each action for the recovery of damages for the wrongful death of his intestate, had assets of those estates in an amount in excess of $5,800.00; that during the pendency of a writ of error and supersedeas in this Court to the judgment in favor of the administrator in each case, and with full knowledge upon his part that in his official capacity as such administrator he was subject to liability for costs in the event the judgment in each case was reversed by this Court, he completely distributed the personal assets of each estate; and that, at the time of the reversal of each judgment by this Court and its adjudication of costs against him in his official capacity in each case, by failing to retain in his possession sufficient funds of each estate to satisfy the adjudication of this Court for costs, he had no funds in his possession as administrator of either estate for that purpose. In that manner and by such conduct he has rendered futile and of no effect the solemn adjudication of this Court in favor of the railroad company as the prevailing party for the costs in each action; and, by the present decision of the majority, any recovery by that company of the costs from the administrator in his official capacity and the surety on his bond has been destroyed.
In the factual situation outlined above, as disclosed by the material allegations of the declaration in each of these actions, which on demurrer are regarded as true, I would hold that the administrator of each estate, by
