Bird v. Stout

• Decision Date: 08 December 1894
• Citation: 40 W.Va. 43,20 S.E. 852
• Parties: BIRD. v. STOUT et al.
• Court: West Virginia Supreme Court

20 S.E. 852

40 W.Va. 43

BIRD.

v.STOUT et al.

Supreme Court of Appeals of West Virginia.

Dec. 8, 1894.

Construction of Will—Charge on Land—Enforcement—Amended Bill—Departure.

1. A will gives several pecuniary legacies, and then gives a sum of money to three children, and then gives "the residue of my estate, real and personal, " to a brother and three sisters, and appoints that brother its executor. Such will creates a charge on the land for the legacy to those children.

2. Where it is manifest that it was the design of a testator that legacies should be paid at all events, the implication is that the residuary devisee or legatee shall have only the remainder after satisfaction of the previous dispositions.

3. A will charges with a legacy land devised to a person, and he conveys it to a third person, who retains in his hands of the purchase money a sum to pay the legacy, and promises his grantor to pay it, Such grantor may maintain a bill in equity against his grantee, making the legatees parties to compel the payment of such fund on the legacy, and to enforce the charge on the land.

4. An amended bill must not introduce another and different cause of suit from that of the original bill. But an amended bill is no departure from the original if it tend to promote a fair hearing of the matter of controversy on which the suit was originally really based, provided it do not introduce a new substantive cause of suit different from that stated, and different from that intended to be stated, in the original bill. An amended bill cannot be allowed containing statements inconsistent with the nature of the original bill or changing the cause of suit. By it allegations may be changed or modified, and others added, provided the identity of the cause of suit be preserved.

(Syllabus by the Court.)

Appeal from circuit court, Harrison county.

Bill by Wesley M. Bird against Noah W. Stout and others. From a decree for plaintiff, defendant Stout appeals. Affirmed.

J. Philip Clifford, for appellant.

John Bassel, for appellee.

BRANNON, P. Appeal taken by Noah Stout from a decree of the circuit court of Harrison county requiring him to pay certain money. The first error assigned is that the court erred in overruling the defendant's demurrer to the original and amended bills. Wesley M. Bird filed a bill in equity against Noah W. Stout as sole defendant, alleging that Bird had conveyed to Stout land at the price of $3,505.95, of which $3,000 had been paid, and the balance was to have been paid afterwards, the deed retaining a lien for the deferred payment; that part of the land once belonged to James H. Bird, who by will devised it to said Wesley M. Bird and others, and directed said plaintiff, Wesley M. Bird, as his executor, to pay each of three infant children of his sister, Caroline S. Stewart, $100 on their severally reaching the age of 21 years; that, as plaintiff apprehended that these legacies might be chargeable on the land, he proposed to pay them out of the money Stout was to pay him as the deferred payment for the land, the children not yet having reached 21 years of age; that the $3,000 recited in the deed as paid had not in fact been paid when the deed was made to Stout, and Stout did not then pay it to plaintiff, but paid debts of plaintiff to sundry creditors; that, in order to ascertain the present value of the legacies to the children at the date of the conveyance a calculation was made, and Stout gave plaintiff his note for $458.95, which was intended, with the debts to be paid by Stout, to leave enough of the purchase money in the hands of Stout to pay the legacies as they would fall due; that Stout had in fact paid only $3,277.94 of the price of the land, and still owed plaintiff the residue of the purchase money, being $228.01, with interest from October 1, 1879; that the children entitled to said legacies were born on certain dates, showing one of them then of age, and Stout had never paid plaintiff or any one else the money so reserved for said children out of said purchase money, and Stout pretended that, as no provision was made in the deed for the legacies or sums to be paid the children, and had paid said note of $458.95, he had paid for the land in full, and owed nothing more on it Let us say that the demurrer to this bill was improperly overruled, as the legatees were necessary, but absent, parties. That defect was cured by an amended bill, which brought them before the court. This amended bill repeated the allegations of the original substantially, alleging that the sum left in Stout's hands was there left for the reason that the legacies it was set apart to pay were a charge on the land under the will of James H. Bird, and was a trust fund for the payment of the legacies; that without regard to any lien on the land Stout should be compelled to account for the fund as trustee for the legatees. The original bill prayed that the $228.01 be decreed to be paid to plaintiff, while the amended bill prayed that one-third of the fund be paid to each of the legatees, and that the land be subjected to its payment. A specification of grounds of demurrer filed to both bills claims that the original bill shows no equity. We have no brief on behalf of appellant Stout to support this contention. Is it intended to say that equity hasno jurisdiction? This question occurred to me as one of doubt on first impression, but my doubt has drifted away on further reflection. I do not think equity jurisdiction can be based on the theory of a lien reserved in the deed, for the deed admits a down payment of $3,000, and retains a lien for the balance of the purchase money, and the note given for that balance is stated in the original bill to have been paid. It may be said that the aim of the amended bill to sustain jurisdiction in equity on the idea of a trust, and that this is a suit to make the trustee account, is untenable. I doubt not but that by common law the children entitled to the money left in Stout's hands could maintain an action at law for money had and received to their use, and under section 2, c. 71, Code. Miller v. Lake, 24 W. Va. 545. I have not deemed it necessary to decide...