Beard et ah. v. Beard et al

• Decision Date: 22 September 1883
• Citation: Beard et ah. v. Beard et al, 22 W.Va. 130 (W. Va. 1883)
• Parties: Beard et ah. v. Beard et al
• Court: West Virginia Supreme Court

22 W.Va. 130

Beard et ah.

v.Beard et al

Supreme Court of Appeals of West Virginia.

Submitted January 19, 1883

Decided September 22, 1883.

(*Snyder, Judge, Absent.)

1.A deed of marriage settlement will not divest the marital rigl of the husband to a greater extent than the terms of the de clearly require, (p. 138.)

2.A deed of marriage settlement settling the wife's property on h for her sole and separate use and authorizing the wife to dispc of her separate property by deed or will concluding with the words: uthat they," the husband and wife, "relinquish t claim, title or interest in each other's property that might vest them under the law by reason of their expected marriage," eg not be construed as clearly relinquishing and releasing all tl interest which the husband shall have in her separate person estate as her sole distributee, if she dies leaving no descendan and intestate without having disposed of her separate estat and therefore the husband surviving her and she dying inte tate and without descendants, he is entitled to the whole of hi personal estate to the exclusion of her next of kin.(p. 139.}

Green, Judge, furnishes the following statement of th case:

In June, 1881, John G. Beard and Elizabeth J. Beard his wife, Thomas C. Blair, Doctor P. Blair, J. C. Blair, Wm M. Blair, Wm Hill and Mariam J. Hill, his wife, Shannoj Clutter, Wm. Clutter and Enos Clutter filed their bill in tin circuit court of Greenbrier county against Abram M. Beard and William L. McNeal.The bill alleged, that Mrs. Marthl A. Beard died in May, 1879, intestate and without issue leaving her husband, Abram M. Beard, to survive her, whe qualified as her administrator on June 2, 1879, his co-defendant, Wm.L. McNeil, being his surety in the administration bond given by him; that there came into the hands ot Abram M. Beard, as administrator of Martha A. Beard, personal estate belonging to the deceased amounting to six hundred and twenty-two dollars and forty-two cents; that she owes no debts.The bill recites, not alleging positively, as

Counsel below. it should have done, that the plaintiffs, the said Blairs, are the brothers and sisters of the deceased, who left no father or mother living, and that the plaintiffs, the said Clutters, are her nephews, the children of a deceased sister, and that thus the plaintiffs are the next of kin and sole distributees of the deceased, Mrs. Martha A. Beard, her surviving husband, Abram M. Beard, having no interest in her estate by reason of a marriage settlement made between him and her prior to the marriage.This marriage settlement had been duly recorded on May 17, 1878, and a certified copy thereof is filed with the bill as a part thereof It is in these words: "This article of agreement, made and entered into this the 7th day of May, 1878, between Abram M. Beard, of the county of Greenbrier, and Martha A. Clark, of the county of Pocahontas, both of the State of West Virginia, witnesseth:

"That in consideration of the fact that the said Abram M. Beard and Martha A. Clark being desirous of entering into the bonds of matrimony, and each one wishing to keep his or her property, both real and personal, in his or her own name and under separate control, and to be disposed of as he or she separately may desire, either by sale or otherwise, the said Abram M. Beard and Martha A. Clark agree that all the property, both real and personal, owned by them shall remain separate and under his or her control and each in his or her own name the same as if they had never been married; and that none of the property of either one shall be subject to the debts of the other; and that they relinquish all claim, title or interest in each other's property that might rest in them under the law by reason of their expected marriage.

"Witness our hands and seals this 7th day of May, 1878.

"Martha A. Clark, [seal.]"A. M. Beard.[seal.]"

The bill prays for a settlement of the accounts of Abram M. Beard as administrator of Martha A. Beard, and for a decree against him and his surety for the balance, which may be found in his hands as such administrator, and for general relief.The summons to answer this bill was served and a few days thereafter, at the June term, 1881, without any written notice, that such motion would be made before the necessary time had elapsed for taking the bill for confessed, the circuit court on motion of the plaintiff referred the cause to James Withrow, a commissioner of the court, who was directed, after ten days notice to the parties, to settle the accounts of Abram M. Beard as administrator of vMartha A. Beard.The clerk was directed to convene in the manner required by law the creditors of Martha A. Beard, deceased.

The notices required having been given, on August 30, 1881, the commissioner reported, that on June 3, 1879, Abram M. Beard qualified as administrator of Martha A. Beard; that he had forfeited his commissions by not settling his accounts in the time required by law; that the property of the decedent, which came into his hands and which was retained by him and not sold, was appraised at three hundred and twenty one dollars and forty-nine cents, with which he is chargeable, and he is also chargeable with property sold by him of his intestate amounting to three hundred dollars and ninety-five cents, in all six hundred and twenty-two dollars and forty-two cents.All the vouchers with the exception of two produced by the administrator as showing payments made by him were for accounts created after the marriage and consist principally of physician bills against her during her last illnes.s and bills principally for clothing for her purchased wdiile she was the wife of Abram M. Beard.These payments and the funeral expenses constituted the payments, which had been made by Abram M. Beard as administrator.The only two debts paid by him, which were contracted before her marriage by her, were one of eighty-five dollars and fifty-five cents and another of two hundred and two dollars and fifty cents.The commissioner was of opinion, that, as it was Beard's duty as husband to provide for his family, these two payments were the only ones for which he was entitled to any credit; and if the accounts were so stated, he would be indebted to the estate as of November 1, 1881, three hundred and sixty-six dollars and seventeen cents.If allowed credit for the physician's bill paid by the administrator and all other payments including the funeral expenses, the bal- ance due from him as of November 1, 1881, would be one hundred and ten dollars and seventy-five cents.

The defendants excepted to this report because ot the non-allowance as in the second statement of all these payments made by the administrator and claimed, that as husband and administrator Abram M. Beard was entitled to the whole estate.To the alternative statement the plaintiff excepted because of the allowance in it of credits for these payments.The two. statements represented the claims of each party respectively.

At the November term, 1881, Abram M. Beard demurred to the bill, because on its face it showed, thaf the plaintiffs had no interest in the estate of Martha A. Beard, and that hethe defendant was entitled to the whole of it.He also filed an answer setting up this claim.

On November 25, 1881, the court entered the following decree:

"The subpoena in this cause having been returned executed, and the defendants still failing to appear and answer the plaintiffs' bill, the said bill is taken for confessed, and this cause having been regularly matured and set down for hearing at rules, came on this the 25th day of November, 1881, to be heard upon the subpoenas executed, and the bill taken for confessed, as aforesaid, the interlocutary order entered at the June term, 1881, the report of Commissioner James With row made in pursuance of said order, the exceptions taken to said report by both plaintiffs and defendants, exhibits filed, and the arguments of counsel.Upon consideration whereof it is adjudged, ordered and decreed that the exceptions taken by the plaintiffs be sustained, those taken by the defendants overruled, and the first statement of Commissioner Withrow's report of the administration account of the defendant, A. M. Beard, upon the estate of his intestate, wdiich shows a balance of three hundred and sixty-six dollars and seventeen cents, as of November 1, 1881, in his hands and due to said estate, be and it is hereby confirmed; and the defendants not asking a recommittal of said report to the commissioner, it is further adjudged, ordered and decreed that Alex.F. Mathews, general receiver of this court, recover from the defendants, Abram M, Beard and Win.L. MeNeal, the surety in his bond as administrator, the said sum of three hundred and sixty-six dollars and seventeen cents and with interest thereon from the 1st day of November, 1881, until paid; and it appearing from said report of Commissioner Winthrow that there are no debts against the estate of the said Martha A. Beard, and that her distributees in the said bill mentioned are entitled to the said sum in the hands of the said administrator, it is further adjudged, ordered and decreed that the said general receiver, when the amount hereinbefore decreed to him shall have been collected, shall distribute and pay over the net proceeds thereof to the said distributees according to their respective interests therein, paying one-seventh of said net proceeds to each of said distributees, except Shannon, Joseph, William and Enos Clutter, to each ot whom he shall pay one-fourth of one-seventh, and the costs of the suit shall be paid out of said fund."

From this decree this Court granted an appeal and supersedeas on the petition of Abram M. Beard, bond and security conditioned according to law being required of him in the penalty of seven hundred dollars.

A. C. Snyderfor appellants.A. F. Matthewsfor appellees.

Green, Judge:

The important and controlling question in...