Boggs' Estate, In re, 10266

• Decision Date: 06 February 1951
• Docket Number: No. 10266,10266
• Citation: 135 W.Va. 288,63 S.E.2d 497
• Parties: In re BOGGS' ESTATE.
• Court: West Virginia Supreme Court

Page 497

63 S.E.2d 497

135 W.Va. 288

In re BOGGS' ESTATE.

No. 10266.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 23, 1951.

Decided Feb. 6, 1951.

Syllabus by the Court.

1. Code, 58-3-4, which deals with 'Appeals from County Courts', provides for a time limitation of four months for the application for an 'appeal' from an order of a county court to a circuit court; but Code, 58-3-6, which provides for application to this Court when an 'appeal' is refused by the circuit court, contains no time limitation within which the application to this court must be made, and, therefore, Code, 58-5-4, dealing with petitions for appeal from, writ of error or supersedeas to any judgment, decree or order of a circuit court to this Court, and provides for an eight-months time limitation for such application, controls.

2. This Court, on its own motion, will take notice of lack of jurisdiction at any time or at any stage of the litigation pending therein.

3. Code, 58-3, dealing with 'Appeals from County Courts', and Code, 58-4, dealing with 'Appeals from Courts of Record of Limited Jurisdiction', should not be read in pari materia.

4. Code, 58-3, dealing with appeals from county courts to circuit courts, and Code, 58-5-4, providing that 'No petition shall be presented for an appeal from, or writ of error or supersedeas to, any judgment, decree or order [of a circuit court] * * *, which shall have been rendered or made more than eight months before such petition is presented', should be read in pari materia.

5. 'County courts are of limited jurisdiction in the sense that their powers are prescribed by Section 24, Article VIII, West Virgina Constitution, but in all matters of probate, the appointment of the fiduciaries named in said Section 24, and the settlement of their accounts, they are courts of record, vested with judicial powers and unlimited in their jurisdiction where, in regular session, jurisdiction of both subject matter and parties is had.' Boone and Boone v. Boone, Point 3, Syllabus, 123 W.Va. 696, .

6. Under Section 24, Article VIII of the Constitution of West Virginia, a county court has jurisdiction to determine factual questions arising on a contract among the children of an ancestor, who died intestate, and who, with the evident purpose of distributing his property equitably among his children, during his lifetime made advancements to them, and on the basis thereof to determine the distributive share in decedent's estate to which each is entitled.

7. Fraud inherent in the provisions of a written contract goes to the issue of non est factum, and renders the contract void and not voidable.

8. Where the children of an ancestor, who at various times and in various amounts over a long period of time, with the evident intention of distributing a part of his property before his death, so as to deal equitably among his children, enter into a contract after their ancestor's death, in which each undertook to set forth correctly the amount of advancements received, which contract provides for the future distribution of the ancestor's estate, taking into consideration the advancement received by each child, and a party to the contract, knowingly and incorrectly inserts therein a lesser amount as an advancement than he actually received, the fraud is in the factum and the contract is void.

9. 'The value of an advancement is to be determined as of its date, if made fully effective as to possession and use at that time; otherwise, when the use or possession thereof vests in the donee.' Point 5, Syllabus, Gaylord v. Hope Natural Gas Co., 122 W.Va. 205 .

10. 'Where a parent makes a substantial gift of money or property to his child, the same will be presumed to be an advancement, but such presumption may be rebutted by competent proof of facts or circumstances sufficient to establish a different intent on the part of the parent.' Point 3, Syllabus, Gaylord v. Hope Natural Gas Co., 122 W.Va. 205 .

11. 'Interest on any advancement made to a child or prospective heir or distributee will not be charged until the death of the donor; but, in order to bring about equality as between those entitled to share in the distribution of an estate, interest should be charged on an advancement from and after the death of the donor thereof.' Point 6, Syllabus, Gaylord v. Hope Natural Gas Co., 122 W.Va. 205 .

12. An indebtedness due an estate by an heir or distributee must be paid in any event, but an advancement embraces no obligation to repay.

13. 'Under Code, 42-4-1, an heir or distributee who has received from his parent or ancestor money or property as an advancement, must, as a prerequisite to further participation in the estate of such parent or ancestor, bring into hotchpot the money or property so received.' Point 8, Syllabus, Gaylord v. Hope Natural Gas Co., 122 W.Va. 205 .

14. Code, 44-4-9, provides for the forfeiture of the commissions of a fiduciary upon failure to effect settlement of his account, as required by statute, 'unless allowed by the court'. This section gives to the county court, before whom the fiduciary is required to make his settlement, a sound discretion upon sufficient showing to allow commissions, notwithstanding the fiduciary's dereliction of duty in making the settlement required by statute; and, in the absence of abuse of such discretion, an order of the county court allowing commissions to a fiduciary, who has failed to make proper settlement, cannot be disturbed in a circuit court or in this Court.

Eakle & Eakle, Clay, for plaintiff in error.

Cary C. Hines, Sutton, Henry N. McMcLane, Clay, for defendant in error.

RILEY, Judge.

This writ of error was awarded on the petition of Ed L. Boggs, administrator of the estate of J. M. Boggs, deceased, and 'as Agent and Trustee of the Beneficiaries of said estate', to the judgment of the Circuit Court of Clay County, rendered on June 6, 1949, in the matter of the settlement of the accounts of Ed L. Boggs, administrator, in so far as Harry M. Boggs, hereinafter referred to as 'H. M. Boggs', one of the heirs and distributees of J. M. Boggs, deceased, is concerned. The circuit court overruled the exceptions of Ed L. Boggs, administrator of the estate of J. M. Boggs, deceased, to the county court's order of December 6, 1948, in each particular, and sustained certain of the exceptions of H. M. Boggs.

The order of the County Court of Clay County, entered on December 6, 1948, upon agreement of counsel, corrected an apparent error of the commissioner's report of interest due on $2,000 of indebtedness from H. M. Boggs to decedent's estate for certain lands purchased by H. M. Boggs from decedent, from $1,867.13 to the corrected amount of $1,451.18, after deducting $148.45, costs recovered by said H. M. Boggs in the circuit court and in this Court in the case of Boggs v. Boggs, 125 W.Va. 600, 25 S.E.2d 631, instead of $187.13. The county court also overruled all other exceptions to the commissioner's report of Ed L. Boggs as 'Administrator, Agent and Trustee' and H. M. Boggs, and except as to the correction of the indebtedness of H. M. Boggs to the decedent's estate, the order of the County Court of Clay County ratified and confirmed the commissioner's report.

The report of the commissioner took cognizance, as the basis of settlement, of a contract dated October 26, 1938, between all of the twelve heirs and distributees of J. M. Boggs, deceased, including Ed L. Boggs, in his own right, parties of the first part, and Ed L. Boggs, administrator of the estate, party of the second part. The latter, though named in the premises of the contract, did not sign the same.

Likewise the circuit court in its final order of June 6, 1949, ordered that the administration of the estate of J. M. Boggs, deceased, in the hands of Ed L. Boggs, administrator, shall be subject to the agreement of the several heirs, dated October 26, 1938, wherein advancements to each heir, whether in real estate or money, are to be charged upon the patrimony of each heir on the basis of the distribution of the funds in the hands of, or coming into the hands of, the administrator to equalize the inheritance of all of the heirs; and partially on the basis of that contract the circuit court decreed the following advancements: 'Sabina Mealy, $5,200.00; Mary S. Hyer, $4,500.00; J. B. Boggs, $7,000.00; Guy Boggs, $4,000.00; Katie Ball, $4,000.00; Fred Boggs, $6,500.00; Ed L. Boggs, $5,000.00; E. A. Bggs, $3,000.00; A. S. Boggs, $5,200.00; Ella Pembroke, $11,000.00, and H. M. Boggs, $7,333.84.'

In addition the circuit court ordered that the advancement made to A. S. Boggs, as set forth in the contract, should be reduced to the extent of $1,600.00, and should, therefore, be fixed at $5,200.00, instead of $6,800.00, as set forth in the contract, and that the advancements made to H. M. Boggs should be increased to the extent of the interest on the purchase money note of $2,000.00, dated February 2, 1933, and paid, less interest, on July 7, 1943, the gross interest amounting to $1,450.25, subject to the diminution of $216.41, leaving the sum of $1,233.84, as the proper charge against the estate of H. M. Boggs, 'which added to his unit of distribution as fixed by the terms of the agreement, that is $6,100.00, aggregates the sum of $7,333.84, of which sum, it is adjudged, ordered and decreed, the distribution of the funds, in the hands of the administrator, should have heretofore proceeded, and hereafter shall proceed, in equalizing the inheritance of the said H. M. Boggs with the other heirs according to the tenor of the agreement of October 12, 1938, aforesaid, as heretofore herein revised and so decreed.'

In the final order the circuit court sustained the exceptions of H. M. Boggs to the compensation and commissions claimed by Ed L. Boggs, administrator, and allowed by the commissioner of accounts, and by the county court, in the amounts of $2,500 and $1,264.96, respectively, ...