66 W. Va. 238 | W. Va. | 1909
In February, 1903, Tasriel Taylor of Calhoun county died intestate, leaving several heirs and a considerable personal estate. A few days afterwards, Amnon Taylor, the oldest son, was appointed administrator of the estate and gave a $6,000.00 bond, as such, in which the Central Banking and Trust Company, the appellant here, was surety. On the 29th day of July, 1904, he appeared before the clerk of the county court of said county, in the recess of the court, and tendered another bond for a like amount, as such administrator, in which the Dnited States Fidelity and Guaranty Company was the surety. On the 28th day of July, 1905, he again appeared before said clerk, in the recess of the court, and tendered a third administration bond for the same sum, in which the Citizens Trust-and Guaranty Company of West Virginia was the surety. All of these bonds were- accepted by said clerk, and his action, in so doing, was later confirmed by the court, but not, in the case of said last named bond, until after this suit had been brought, nor until April, 1906. The giving of the second bond was occasioned by a demand for release, made by the surety in the first, the law
The administrator having failed to file an inventory of the estate and also to settle his accounts, within the time prescribed by law, but having made an ex parte settlement at a later date, which is said to be incorrect, but shows indebtedness to the distributees, amounting to $2,728.77, three of the infant children of the decedent, suing by their next friend, instituted this suit to obtain a discovery of assets, surcharge and falsify the settlement and compel payment of their distributive shares of the estate. The sureties in all the bonds were made parties defendant, but the bill was dismissed on demurrer, as to the United States Fidelity and Guaranty Company and the Citizens Trust and Guaranty Company, the sureties in the last two bonds, and a decree was pronounced, fixing the liability at the sum of $3,035.60, and requiring the administrator and the .surety in said first bond to pay to each of the plaintiffs the sum of $505.93, one-sixth of the total amount, these constituting the total actual liability, since the other three heirs had received their shares. The surety appeals, assigning several errors, going to the question of liability, sufficiency of the bill in respect to pleading, rulings on exceptions to the commissioner’s report and other matters, and the appellees cross-assign errors, relating to charges and credits in the account as reported.
The answer of the Central Banking and Trust Company set up all the facts hereinbefore stated, and claimed to have been released from liability on the bond by reason thereof, but did not assert any claim to cross relief against the sureties on the other two bonds or either of them. In other words, the answer is one purely defensive to the bill, and the questions, raised by it, are, for the most part, legal in their nature. They involve the powers and duties of the clerk of the county court and the force and effect of his acts done in vacation. They also necessitate an. inquiry as to the meaning and construction of the statutory provisions relating to bonds given by fiduciaries. Section 1
The vital inquiry here is whether the act of the clerk, done in the recess of the court, and afterwards approved and confirmed by the court, released the surety in the first bond, rather than whether a new bond, so taken and approved, binds the obligors therein. Such new bond may be absolutely good and yet not constitute, in law, a substitute for the old one or work a release thereof. Section 10 of chapter 87 seems to be the only provision in our statute, authorizing the release of a surety or substitution of a new bond for an old one, at the instance of a surety. This section says the court may, when it appears proper, “on evidence adduced by a surety or the representative of a surety for such fiduciary * * order him to give before such court a new bond within a prescribed reasonable time, in such penalty, and with or without sureties, as may appear proper, and may, if such order be not complied with, or whenever from any cause it appears proper, revoke and annul his powers.” The effect of such bond, when given, is prescribed by the next section. No provision, expressly authorizing the clerk to require a new bond or release a surety, can be found in the statute. Iiis authority to take bonds is conferred in connection with the appointment of fiduciaries, and, while there is no limitation upon his powers in respect to the jurisdiction conferred upon him in the recess of the court, except that he shall hear no contest, the provision authorizing him to take bonds must be read, considered and interpreted in the light of that other statutory provision which vests the jurisdiction to take new bonds, releasing olotones, in the court, and not in the clerk. Devolution of this power upon the court negatives intention to allow it to be used elsewhere or by any other tribunal
Eight to discovery, predicated on the failure of the administrator to file an inventory within the time prescribed by law, is urged as a ground of jurisdiction, but, in view of the settlement, made before the institution of the suit, this ground of jurisdiction may have failed Whether the position is tenable or not, it is unnecessary to say, inasmuch as there is jurisdiction upon the ground already stated.
The action of the court in overruling an exception to the report of the commissioner, in respect to the allowance of interest from the 18th day of June, 1905, on the balance then due from the administrator’, is complained of in the assignments of error. The exception says the funds came into the hands of the administrator on that day and he should have been allowed a year in which to invest the same. Nothing in the record sustains this assertion. The commissioner, before whom the administrator made his settlement, shows by his report that there was then in his hands, or rather that he was then liable to the estate for, said sum. As he had been appointed almost Wo years before the date of this settlement, and the appraisement of the estate, made immediately after his appointment, a copy of which is exhibited with the bill, shows there were then money of the estate amounting to $3,233.83 and notes amount
Exception No. 3 sets up want of jurisdiction in the court. This is without merit, as we have shown. Exception No. 4 goes to the sufficiency of the commissioner’s notice and-the publication and posting thereof. There is no specification of any defect, and we see none.
The cross-assignment of error goes to the allowance of commission on the entire amount of the estate. This having been disallowed by the commissioner, and the surety having excepted to his action in so doing, the court sustained the exception. By express statutory provision, a fiduciary loses his commission for failure to make his settlement within the prescribed time, unless, within such time, he shall have rendered to the parties entitled, to the money in his hands, a statement thereof and actually settled therefor, or laid a statement of his receipts before a commissioner in a pending suit, authorized to settle his accounts. The administrator’s answer attempts to excuse the failure in question by showing he had seasonabfy laid his accounts before a commissioner who was then sick and later died without having reported the settlement; but a general replication was filed, calling for proof of the averment, which was not furnished, although Taylor was examined as a witness, and it appears he could have proved the averment, if true, by another witness. But he adduced no evidence at all to sustain it. Proof of this part of the answer might have sufficed. Lovett v. Thomas, 81 Va. 245; Trevelyan v. Loft, 83 Va. 141; Brent v. Clevinger, 78 Va. 12; Boyd v. Boyd, 3 Grat. 112; Kee v. Kee, 2 Grat. 116. If the court has any discretionary power in such cases, some facts must be disclosed, calling for the exercise thereof. It cannot
No other error being perceived, the decree, as so modified, will be affirmed with costs and damages according to law.
Modified md Affirmed.