Ash v. Wells, Executor et als.

• Decision Date: 05 October 1915
• Citation: 76 W.Va. 711
• Parties: Ash v. Wells, Executor et als.
• Court: West Virginia Supreme Court

76 W.Va. 711

Ash

v.Wells, Executor et als.

Supreme Court of Appeals of West Virginia.

Submitted September 14, 1915.

Decided October 5, 1915.

1. Executors and Aministrators Conveyance of RealtyTower of

Executor.

His interest in the estate of the testator, as legatee and creditor, does not authorize the executor of a will giving him a power of sale of the real estate of which the testator died seized, to convey any portion thereof directly or indirectly to himself, in satisfaction of any debt the estate may owe him. (p. 712).

2. Trusts -Express Trust Laches.

Though laches will run against an express trust, courts of equity apply the rule, in such cases, less readily than in eases of constructive trusts, and rarely ever do so, unless the circumstances disclose a defense in the nature of estoppel, such as intervention of the rights of third persons, loss of evidence, death of parties and witnesses, settlement or disavowal of the trust, acquiesced in by the cestui que trust., or the like. (p. 714).

3. Executors and Administrators Conveyance to Self Setting

Aside.

In setting aside a conveyance of trust property, made by an executor to himself, professedly in satisfaction of a debt due to him from the estate, and decreeing a sale of the land, the court should provide for the payment of such debt, if any, out of the proceeds of the sale; but not until the debt shall have been established by proper evidence, (p. 715).

4. Same Conveyance of Property Setting Aside-Debt Evidence.

In such case, the executor's sworn statement that the estate was indebted to him at the time of the conveyance, supplemented by a copy of an ex parte settlement showing, among other things, credits taken as for payments of such debts to himself, is not sufficient evidence thereof, (p. 715).

Appeal from Circuit Court, Tyler County.

Suit by Zadok Ash against Alpheus C. Wells, executor, etc., and others. Prom decree for complainant, the executor appeals.

Affirmed in part Reversed in part. Remanded.

M. K. Duty, for appellant, J. V. Blair, for appellee.

POFFENRARGER, JlJDGE:

Alpheus C. Wells, executory of the will of Alf Conaway, deceased, having the power of sale of the testator's real estate, by virtue of a provision of the will, indirectly conveyed to himself the homestead, known as the Joseph's Mills place, containing 56 3/4 acres, at a valuation he fixed upon it, charged himself with the amount of such valuation, took his commission on the same and credited the supposed purchase price on alleged debts due to himself from the estate. At the Instance.of Zadok Ash, assignee of some of the legatees and devisees of the will, this conveyance was set aside and the land decreed to be sold. Allowing Wells the amount with which he had charged himself in his settlements, on account of the tract of land, $2,800.00, interest thereon from the date of the deed, taxes paid by him and Interest thereon and $700.00 for enhancement of value by improvements, and charging him with 28/35 of the rental value of the land, the court adjudicated a balance of $3,837.30 in his favor and directed payment thereof out of the proceeds to be derived from the sale of the land under the decree. Wells appealed from the decree and Ash has cross-assigned errors.

The principal part of the estate was agricultural land, the appraised value of which was something less than $15,000, 00. Specific legacies amounting to more than $12,000.00 were provided for by the will, and the estate was to some extent indebted. Having directed the payment of his indebtedness and the specific legacies, the testator empowered the executors to sell all of the personal property not previously disposed of and authorized them to take full possession and control of the real estate, to let and lease it for farming, grazing and oil and gas purposes and to sell and convey it upon such terms and conditions as they might deem best. Out of the rents and the proceeds of the sale of the real and personal property, they were directed to pay the debts, expenses and legacies, and the residue was given, in equal shares, to his three nephews, A. J. Wells, Emery E. Wells and Alpheus C. Wells, and his nine natural children, Addie L. Conaway, William E. Connaway, Alfa Conaway, Ora A. Conaway, Benjamin W. Conaway, Elsie Conaway, Cheslie Conaway, Ray Conaway and Roy Conaway.

The testator died March. 21, 1903. By a deed dated Nov. 5, 1904, Alpheus C. Wells, the executor of the will and also a beneficiary thereof and creditor of the estate, conveyed the homestead to J. P. Ferrell, for a recited consideration of $2,700.00. On the 7th day of February 1905, Ferrell conveyed it to Wells by a deed reciting a consideration of $2,800.00. Wells frankly admits in his answer, as well as in his testimony, that the purpose of these deeds was a transfer of the property to himself, in satisfaction of indebtedness due him from the estate. He does not pretend or claim the land was actually sold to Ferrell, but he denies any fraud or wrongful intent in the transaction. In the settlements he made, he charged himself with $2,800.00, on account thereof, but offset this charge by credits for payments of debts to himself. No part of the $2,800.00 was actually included in the payments made to beneficiaries. The money they received actually came wholly from other sources. But, if the estate owed the executor, they got the benefit of the $2,800.00, for, in that case, the money they got would have been applied on his debts, if he had not treated the land as satisfaction thereof. In 1907, the Conaway children received from him $200.00 each and, in 1908, $150.00 each. By an agreement dated November 30, 1910, six of them, William E., Ora A., Benj. W., Elsie, Cheslie and Roy Conaway, for and in consideration of $340.00 each, assigned and transferred their respective interests in the estate to Zadok Ash, and by a like instrument, dated December 23, 1910, Auddie L. Netzer, another one of them, assigned and transferred her interest to him.

The situation of the executor, at the time of the conveyance, did not bring him within the exception to the general rule, inhibiting a trustee or other person standing in a fiduciary relation, from purchasing the trust subject at his own sale. His relation of legatee and creditor might have justified his bidding on the property at a sale made under a decree or other judicial proceeding, on...