Beuter v. Beuter

• Decision Date: 27 February 1940
• Docket Number: 9008.
• Citation: 7 S.E.2d 505,122 W.Va. 103
• Parties: BEUTER et al. v. BEUTER et al.
• Court: West Virginia Supreme Court

7 S.E.2d 505

122 W.Va. 103

BEUTER et al. v. BEUTER et al.

No. 9008.

Supreme Court of Appeals of West Virginia.

February 27, 1940

McCamic & Clarke, of Wheeling, for appellants.

Wm C. Piper and Leo A. Coleman, both of Wheeling, for appellees.

FOX Judge.

This appeal is prosecuted by creditors of Richard K. Beuter, now deceased, from a decree of the circuit court of Ohio County which made an allowance to counsel for plaintiff, payable out of a fund which would otherwise have been distributed among the appellants as common creditors.

The record is incomplete, and we are forced to rely upon inferences drawn from the record as presented as to the history of the litigation. However, to fairly present the legal question at issue, it is necessary to detail the course of the litigation, as we understand it, leading up to the decree under attack.

At January Rules, 1932, Carrie Martin Beuter on behalf of herself and all other creditors of the estate of Richard K Beuter, deceased, filed her bill against Zelda M. Beuter executrix of the estate of Richard K. Beuter, and Zelda M. Beuter and Paul M. Beuter, widow and son, respectively, of the decedent. She alleged that she was at the date of the death of Richard K. Beuter his lawful wife, and entitled to dower in his real estate and to an interest in his personal estate; that the decedent died seized of a lot on Wheeling Island, designated as tract No. 1, and an undivided one-half interest in another lot in North Wheeling, designated as tract No. 2, and that the plaintiff was the owner of the other one-half interest therein; that said real estate was susceptible of partition, but, if not, the same should be sold for the benefit of those interested therein and creditors; that the decedent, at the date of his death, was indebted to the plaintiff in the sum of $4,900, of which the sum of $2,980 represented rents received by said decedent from property owned in common by decedent and plaintiff not accounted for, but there is nothing in the bill indicating the nature of the balance of her claim. The prayer is for an accounting as to rents due the plaintiff; for her dower interest; for general ascertainment of debts; for a partition of said real estate, or its sale; and for general relief.

The record before us does not clearly show what proceedings were had in the cause prior to December 30, 1937, but on that day a decree was entered directing T. H. Duval, special commissioner, to pay to Austin V. Wood, attorney for Carrie Martin Beuter, deceased, the sum of $100 for his services as counsel for her in this cause, and directing the said special commissioner to pay one-half of the money remaining in his hands, after payment of costs, to her personal representative. From this decree we conclude that Carrie Martin Beuter had died, and that a personal representative had qualified for her estate, and that property had been sold by Duval, as special commissioner, in which her estate had an interest. From a decree entered in the cause of December 23, 1938, we learn that tract No. 2, above referred to, had been sold under order of the court and that there was then in the hands of the clerk of the court the sum of $769.65 realized from such sale, as the proceeds of an undivided one-half interest therein and available for the payment of the debts of Richard K. Beuter; and the record further shows from the final report filed by said special commissioner, that there had been a division of the proceeds of the sale of tract No. 2 between the estates of the plaintiff herein and Richard K. Beuter. In the decree last mentioned it appears "*** that the interest of Carrie Martin Beuter was that of a co-parcener or tenant in common in and to the said Parcel No. Two with the decedent Richard K. Beuter and that her interest in the estate of Richard K. Beuter or in any property in which he or his estate is interested was fully satisfied in the sale of Parcel No. Two which was heretofore sold under order of this Court of the proceeds of which she received one-half ***."

The sale of parcel No. 1 was directed by this decree and a sale thereof made for the sum of $1,500. It is asserted in the brief of the appellants, and not controverted by the appellees, that after the payment of taxes and costs and after providing for $300 to be paid as a preference on the funeral bill of the decedent, there remains for distribution among the appellant creditors and one other, whose debts aggregate $3,435.65, the sum of $756.26.

Under this state of affairs Leo Coleman on July 11, 1939 petitioned the trial court for an allowance of $350 to be paid out of the fund remaining as aforesaid, in which petition it is noted that Austin V. Wood was original counsel for the plaintiff in this cause, and it is alleged that upon her death the suit was revived at the instance of the petitioner in the name of a personal representative; that he performed services in an effort to establish that a decree of divorce as between Carrie M. Beuter and Richard K. Beuter, entered by the Common Pleas Court of Cuyahoga County, Ohio, had been set aside, presumably in aid of the...