Brown. v. McGraw.

• Decision Date: 31 March 1925
• Docket Number: (No. 5116.)
• Court: West Virginia Supreme Court
• Parties: J. Walter Brown et al. v. H. G. McGraw et al.

98 W.Va. 607

J. Walter Brown et al.

v.H. G. McGraw et al.

(No. 5116.)

Supreme Court of Appeals of West Virginia.

Submitted February 24, 1925.

Decided March 31, 1925.

1. Executors and Administrators Administrator May Purchase Real Estate of Decedent at Regular Judicial Sale; Deed to Administrator not Voidable on Complaint of Heir, if Sale is for Adequate Price, at Open Competition and not Fraudulent, and Proceedings arc Regular.

An administrator who is also a creditor of his decedent is not precluded from being a purchaser of real estate of the decedent made at a regular judicial sale at auction by a special commissioner, in a suit to sell the same to satisfy debts, the personal property being insufficient. If the sale be for an adequate price, at open competition, without suspicion of fraud or collusion, and the proceedings and sale be regularly conducted, reported and confirmed, the simple fact of purchase by the administrator will not render the deed voidable upon complaint of an heir of the decedent, (p. 612).

(Executors and Adminitrators, 24 C. J. § 1501.)

2. Same That Administrator teas Guardian of Decedent's Infant Heirs Held not to Render Deed to Decedent's Dand Purchased by Him at Judicial Sale Voidable.

Nor will the fact that the administrator was at the time of making the; bid at such sale and subsequent confirmation by the court also guardian of the infant heirs of the decedent, render the deed voidable, it appearing that such purchase was for an adequate price, above suspicion, and for the best interests of the estate. (p. 611).

(Executors and Administrators, 24 C. J. §§ 1589, 1591 [1926 Anno.])

(Note: Parenthetical references by Editors. C. J. Cyc. Not part of syllabi.)

Appeal from Circuit Court, Wyoming County.

Suit by J. Walter Brown and others against H. G. McGraw and others. From a decree for plaintiffs, defendants appeal.

Reversed; bill dismissed.

J. Albert; Toler and Grover C. Worrell, and Harold A. Ritz, for appellants.

Poffenbarger, Blue & Dayton, and F. E. Shannon, for appellees.

Lively, President:

This action in equity in the nature of a bill of review was brought in the circuit court of Wyoming County to recover the mineral and surface to a tract of land containing about 58.25 acres situate in that county, and to have cancelled conveyances made to defendants, the Wyoming-Pocahontas Coal & Coke Company (the claimant of the minerals at the date of the filing of the bill), and to M. H. Sluss, Matilda Brown, C. W. Cook, Wilson Cook, H. G. McGraw, R. B. Cook, P. G. Hurst and Dora Hurst, (the claimants of the surface at the date of the filing of the bill), and to have certain intermediate conveyances set aside. The lower court entered a decree granting the relief prayed for, and this appeal followed.

On December 18, 1913, II. S. Brown died intestate, leaving a widow, Ophelia Browm, and two children by a former marriage, Lura, nowr Lura E. Walker, then 13 years of age, and J. Walter, then 11 years of age, who (the children) are the plaintiffs in this snit.

At the date of his death H. S. Brown was the owner in fee simple of a farm containing about 58.25 acres situate on Laurel Creek in Wyoming County. The personal estate of the decedent was appraised at $176.75. He also owned certain timber which he had cut from a part of the above described tract and contracted to sell; this contract was completed by his administrator after his death, the proceeds of which contract, after paying the expenses incident to completing the delivery of the timber, amounted to $93.32, making the aggregate of the personal estate $270.07. The debts owed by the decedent at the time of his death and accumulating thereafter totaled approximately $396.43, of which $83.00 was due and owing defendant, Joel McGraw. The widow7 and children claimed as exempt the decedent's personal estate as appi raised. This left the aforesaid $93.32 as the only available personal assets with which to pay the indebtedness.

On January 5, 1911, on the motion of Ophelia Brown, widow of H. S. Brown, Joel McGraw, one of the defendants herein, was appointed administrator of the personal estate of said decedent, and on March 23, 1914, he instituted a suit in chancery in the circuit court of Wyoming County, as administrator against the widow and heirs at law of the decedent and the several creditors of his estate, the object of which action was to have his accounts as administrator settled and to subject the real estate of said decedent to the payment of the indebtedness against the estate, the personal property being insufficient to pay the debts.

On June 16, 1914, Joel McGraw qualified as guardian of the infants, Lura E. and J. Walter Brown.

At the term of court held in July, 1914, the case was referred to a commissioner in chancery for the purpose of ascertaining what personal estate H. S. Brown owned at his death, the character and value thereof; the amount of personal property in the hands of the administrator; a settlement of the administration of the estate by him; what debts H. S. Brown owed at the time of his death, to whom payable, their nature and respective amounts and priorities; what real estate was owned by him at the time of his death, its quantity, description and location; the liens against said real estate, their amounts and priorities; and such other matters as any party in interest might require, the same being pertinent, or such other matters as said commissioner himself might deem pertinent whether required or not.

At a later date the commissioner reported an indebtedness amounting to $396.43 against the estate, and only $93.32 of personal assets in the administrator's hands available for the settlement of the debts. This report was confirmed in Oct, 1914. The commissioners appointed to assign dower having reported that they had laid, off and assigned to the widow a portion of the improved part of the decedent's realty, 15.50 acres being allotted to the widow as her dower interest, this report was also confirmed in Oct, 1914; and a decree was entered directing Col. Childers as special commissoner to sell the real estate at public auction, to the highest bidder, the proceeds of the sale to be applied to the payment of the indebtedness and the remainder, if any, to be paid to Joel McGraw as Guardian of said infant children. Col. Childers who was directed to make the sale had represented the administrator in said suit. It was further provided in said decree that the timbered portion of the realty, amounting to 18.50 acres, should be offered for sale first, and if this portion sold for a sufficient sum to pay the indebtedness and the expense of administration and costs of suit, no other part of the land was to be sold. On April 5, 1915, said special commissioner, after having advertised the time of the sale, the terms thereof, etc., as required by the decree, offered the 18.50 acres of timber land, and not receiving an offer sufficient to pay all of the indebtedness of the estate, put the whole tract up for sale. The highest bid received was $525.00, and the administrator, for the purpose (as stated by him in his deposition) of stimulating the bidding and thereby protecting the interest of his infant wards, bid $600.00 for the property, he, as he claims, having been advised by the special commissioner that he had a legal right to bid. The commissioner testified that he did not remember giving this advice. The bid of $600.00 proved to be the highest one and the real estate was knocked down to Joel McGraw. Upon report of this sale to the court, it was duly confirmed; and at a later date, it having been reported to the court that all the purchase money had been paid by the purchaser, Joel McGraw, and disbursed to the parties entitled thereto, Col. Childers as special commissioner was directed to convey the tract of 58.25 acres to the purchaser, and by deed of Nov. 9, 1915, he did convey said tract of land as directed.

By two deeds, one dated Feb. 19, 1917, and the other dated March 17, 1917, Joel McGraw and wife conveyed their entire interest in the said tract of land and two additional acres, to J. C. McGraw, (Joel McGraw, according to his testimony, making a profit of $800.00 on his original investment); and by a series of conveyances made since that time, the title to the minerals and surface in this tract is now vested in the defendants as hereinbefore set forth. The widow of IT. S. Brown died m 1918, of influenza, she then being about o!) years of age. The land in controversy has greatly increased in worth., the mineral rights being particularly valuable. The enhanced value of the property can be attributed in no small measure to the building of a railroad through that territory, which took place subsequent to the conveyances by Joel McGraw to J. C. McGraw.

It appears from the depositions that the defendant, Joel McGraw, had taken the female heir, Lura Brown, into his family and had supported and educated her at his expense, until she obtained a sufficient education to teach in the public schools; and had arranged with Joe Harless, a brother of the. mother of the children to take and care for the male heir J. Walter Brown. It further appears that a short time after Lura Brown attained the age of 21 years, she demanded a settlement from her guardian concerning the money that had come into his hands as guardian, and that he, on March 14, 1922, made a settlement with her and took her receipt for the sum of $54.00, which, according to the testimony of the defendant, Joel McGraw, was the full amount due her by reason of his guardianship. Lura in her deposition admitted receiving the $54.00, but claimed that at that time she did not know her legal rights in regard to the sale of the land in question.

A considerable part of the record is taken up with evidence as to the adequacy of the price paid by Joel McGraw for the 58.25 acres of land. The evidence shows that at the date of the sale the price was a fair and adequate one. There is...