McKittrick v. McKittrick

• Citation: 27 S.E. 303,43 W.Va. 117
• Parties: McKITTRICK et al. v. McKITTRICK et al.
• Decision Date: 17 March 1897
• Court: Supreme Court of West Virginia

27 S.E. 303

43 W.Va. 117

McKITTRICK et al. v. McKITTRICK et al.

Supreme Court of Appeals of West Virginia.

March 17, 1897

Submitted January 16, 1897

Syllabus by the Court.

1. The consolidation of causes is a matter addressed to the sound discretion of the court that tries the causes. Where the parties are the same, and separate suits have been brought in equity upon matters which might have been united in one suit and the defense is the same in all, a consolidation rule ought to be granted.

2. When the widow is defendant in a suit brought to subject the realty of a decedent to the payment of his debts, and she has not elected to take the value of her dower in money, her dower should be assigned before an out and out sale of the realty is decreed.

Appeal from circuit court, Putnam county.

Bill by Ellen McDonald and others against Catherine McKittrick and others, and bill by Daniel McKittrick against Catherine McKittrick and others. The suits were consolidated, and from the decree Ellen McDonald and others appeal. Reversed.

RUFUS SWITzer, for appellants.

Tomlinson & Wiley, for appellees.

ENGLISH. J.

At the December rules, 1884, Ellen McDonald and others filed their bill in the circuit court of Putnam county against Catherine McKittrick in her own right and as administratrix of Patrick McKittrick, deceased, and all the unknown heirs of said Patrick McKittrick, C. A. Vintroux, and RUFUS SWITzer trustee. The complainants allege in their bill: That Catherine McKittrick was duly appointed and qualified as administratrix of said Patrick McKittrick, her deceased husband. That the greater part of the estate of which the said Patrick McKittrick died seised consists of a valuable tract of land consisting of 320 acres, situate in Putnam county, W. Va., conveyed to said Patrick McKittrick by Thomas Dawkins by deed bearing date the 18th day of May, 1857 excepting a fractional piece thereof, conveyed by said Patrick McKittrick to Bishop John McKain, of Wheeling. That there were no debts against the said estate of Patrick McKittrick except one note of $522.73, due C. A. Vintroux and secured by deed of trust bearing date the 14th day of March, 1883, and of record in the clerk's office of the county court of Putnam county, W. Va., in which trust deed RUFUS SWITzer was trustee; and a certified copy of said trust deed was exhibited with plaintiff's bill. That there were other trust deeds conveying said lands by said Patrick McKittrick in his life-time, which plaintiffs allege they are informed have been fully paid up. The one of Patrick McKittrick and wife to James W. Hoge, trustee, to secure to William E. Vintroux $221.72, should be released, as the same debt is included in the amount secured in the trust first mentioned. That the amount secured by deed of trust to William A. Bradford, trustee for William Henson, has long since been paid and discharged, and should be released. And complainants pray that enough of said land be sold to satisfy the debt secured by the deed of trust of said Patrick McKittrick and wife to RUFUS SWITzer, trustee; that the dower of said Catherine McKittrick, widow, as aforesaid might be laid off to her in said land, and that, if there were any other debts due from said estate, enough of the remainder of said tract be sold to pay said debts; and that if, after setting aside said dower and paying all of the indebtedness of said estate, the remainder of said land is susceptible of partition among the parties thereto, the same be so partitioned, and, if not, that the remainder of said land be sold, and the proceeds distributed among the parties in proportion to their respective interests therein, etc. At the January rules, 1885, Daniel McKittrick, who sued on behalf of himself and all other creditors of Patrick McKittrick, deceased, filed his bill in said circuit court against Catherine McKittrick in her own right and as administratrix of Patrick McKittrick, deceased; C. A. Vintroux in her own right and as administratrix of William T. Vintroux, deceased; Taylor Hoge, administrator of J. W. Hoge, trustee, deceased; RUFUS SWITzer, trustee; L. A. Christie, administrator of William Henson, deceased; William A. Bradford, trustee; and the unknown heirs at law of Patrick McKittrick, deceased,--alleging therein: The death of Patrick McKittrick, and the appointment and qualification of said Catherine McKittrick as his administratrix. That more than six months had elapsed since the appointment and qualification of said administratrix, and that, although the estate was and is largely in debt, no suit had ever been instituted by said administratrix for the purpose of winding up and setting up said estate, and to sell said real estate belonging to said estate to pay the debts on said estate. That said Patrick McKittrick left no personal estate, but that he died seised and possessed in fee of said tract of 320 acres near Scott depot, on the Chesapeake & Ohio Railway, in Putnam County, less a lot 162 by 208 3/4 feet conveyed out of said tract by said Patrick to Bishop John J. Kain, of Wheeling, by deed dated April 29, 1876, as a site for a Catholic church; and setting forth the trust liens upon the same as stated in the other bill, and also stating which of said trust liens had been paid off and discharged, and also stating that the estate of said Patrick McKittrick was indebted to the plaintiff Daniel McKittrick as follows: On account of a certain note made and executed by said Patrick in his lifetime, dated November 12, 1874, and payable to plaintiff two years after date, for the sum of $200, with interest from the maturity thereof; and on account of a certain other note made and executed by said Patrick in his lifetime, bearing date November 1, 1876, and payable to plaintiff one year after date, for the sum of $172, with interest from the maturity of said note; and on account of another note made and executed by the said Patrick, dated January 2, 1880, and payable to plaintiff, for the sum of $470.50, and payable twelve months after date, with interest from the maturity of said note; and also on account of a certain due bill made and executed by the said Patrick, dated December 3, 1879, for six months' services and general repairs on the farm of the said Patrick performed and rendered by plaintiff of the value of $500. That nothing has been paid on said notes or due bill by Catherine McKittrick, administratrix, or any other person, but that said debts remain wholly unpaid, and constitute a valid and subsisting charge and lien upon the estate of which the said Patrick died seised and possessed. That the personal estate of said Patrick McKittrick is wholly insufficient for the payment of his debts, and the plaintiff prays that all proper accounts may be taken, and that the real estate of which the said Patrick McKittrick died seised and possessed may be subjected to sale for the payment of his just debts and liabilities, and especially the aforesaid...