Cann v. Cann
| Decision Date | 19 December 1894 |
| Citation | 40 W.Va. 138 |
| Court | West Virginia Supreme Court |
| Parties | Cann v. Cann et al. |
Administrator Statute of Limitations.
An administrator who presents a personal demand against his decedent's estate must show that such: demand is just and valid, and not barred by the statute of limitations. The statute of limitations does not begin to run until the right of action accrues.
UNDELlE RED writing DUE BlLL.
An action or suit can not be maintained on an undelivered writing or due bill found among the supposed debtor's papers after his death.
.Undelivered Writing Statute of Limitations.
Such writing, so found, is not sufficient acknowledgment to prevent the bar of the statute of limitations, but may, if genuine, be admissible as evidence to establish a quantum meruit.
Administrator Son's Services.
Where a son, who is also the administrator of his father's estate, sues such estate for wages claimed for services rendered before his father's death, he can not recover unless he proves an express contract, or the facts and circumstances sustained by a preponderance of testimony clearly establish an expectation or intention on the part of his father to compensate him for such services.
Faulkner & Walker, W for appellant:
H TRavers and C. H. Syme "A report of a commissioner unless excepted to will be presumed by the court as admitted to be correct, not only, as to the principles of the account, but as to the evidence also." 21 W. Ya. 262; 22 W. Va. 159; 24 W. Ya. 524.
party complaining of a commissioner's report must point out the errors of which he complains by exception thereto so as to direct the 'mind, of the court to it, and when he does so the parts not excepted to are presumed to be correct," "both as to the principles, and the evidence on which the parts are founded:" 14 W. Ya. 531; 18 W. Ya. 185; 21 W. Ya. (); 19 W. Ya. 459.
Exceptions in general terms amount only to a personal allegation. 19 W. Ya. 459.
Exceptions to a commissioners report must state some principle upon which the commissioner erred, or some fact, otherwise the court must disregard the exception. 2 Danl. Chan. Prac. 1315, 1316; 29 Ala. 393; 2 Sum. 108; 13 Peters 359; 21 W. Ya. 271; 14 W. Va. 521; 10 W. Va. 298; 12 W. Va. 402.
Adult defendants failing to except to commissioners report will not be permitted to impeach it, either at the hearing of the cause, or in the appellate court. 10 W. Ya. 645; 8 W. Va. 218; 17 Gratt. 85; 12 W. Va. 213.
Exceptions to a commissioner s report must be stated so that the court can decide upon the equity, or legality of the principal only, upon which the article is admitted or rejected. The error must be pointed out with reasonable certainty. 2 H. & M. 422; 21 W. Va. 271; 14 W. Va. 559; 26 W. Va. 540; 25 W. Va. 417.
Where questions purely of fact are referred, to a commissioner, his findings will be given great weight, and should be sustained unless it plainly appear that they are not warranted by any reasonable view of the evidence. 26 W. Ya. 710; 14 W. Va. 1; 21 W. Va. 698; 33 W. Va. 160; 38 W. Va. 370; 30 W. Va. 147.
Under the prayer for general relief, the plaintiff is entitled to such relief as is agreeable to the case made in the bill though different from the specific relief prayed for. 38 Pa. St. 155; (98 Am. Dec. 248).
" Under prayer for general relief any relief may be granted which is suitable to the ease, and consistent with the allegations and proofs St, Eq. PI. § 40; 2 Rob. Prac. (old) 293, and cases therein cited; 1 Barton Chan. Prac. 267; 1 Munford 549; 2 Rand 401; 15 Gratt. 400; 17 Gratt 85; 21 Gratt. 60; 4 W. Va. 107; 26 Gratt. 571; 8 Leigh 513; 38 W. Va. 408; 4 W. Va. 107; 22 W. Va. 404; 1 Bland, 251; 20 N. J. Equity 367; 1 Danl. Chan. Prac. 434; 1 Munford 554, note; 3 Munford 29; 19 S. E. Rep. 845."Under the general prayer the complainant is entitled to any relief consistent with the case made, though inconsistent with the special relief prayed for." 8 Wood 339; 18 Ala. 371; 15 Md. 82.
Statute of limitations could not apply in this case. 122 U. S.
176; 78 Va. 683; 14 W. Va 222; Code of West Virginia, c. 104, s. 8; 1 Wood on Limitations 24 and 25; 1 Cranch 90; 1 Cranch 55; 23 W. Va. 717; 24 W. Va. 594. If the Statute of limitations could apply (which is denied) it could only extend to the interest of the party pleading it. 3 Bland Chan. Rep. (Md.) 500, 501; Maryland Rep. 100.
D. B. Lucas for appellees cited, 23 W. Va 241; 33 W. Va. 574; 88 K Y. 92; 2 Bla. Com. 511: 3 Id. 18, 19; 25 W. Va. 830.
At March rules, 1883, in the clerk's office of Morgan county, Harrison Cann filed his bill in chancery against the heirs of his father's estate to enforce payment of his claim for services rendered as evidenced by a certain duebill bearing date the 28th day of April, 1880, calling for three thousand dollars for services rendered by the plaintiff "since he became twenty-one years of age." The plaintiff made himself a party defendant to this bill as administrator of decedent.
The only appearance for the defendants is the answer of the infants Silas Largent and Elizabeth Largent, by their guardian ad litem, T. N. B. Davis; an answer filed by George W. Ziler, husband of one of the heirs, and an exception endorsed on the commissioner's report by the defendants Catherine Ziler, Susan E. Ambrose, and Sarah Cann. The bill is not taken for confessed as to any of the defendants, but on service of sermons an order of reference is entered to ascertain the debts and their priorities against the estate of Jacob Cann, deceased, and the estate liable to the payment of the same. From the commissioner's report it appears that the personal estate was amply sufficient to pay all the debts against the decedent, with the exception of plaintiff's claim, and that is the only matter of controversy in the suit, without which no, suit would have been necessary.
According to the law and the decision of this Court in the case of Rader v. Neal, 13 W. Va. 373, in this suit concerning his wife's separate estate, George W. Ziler was not a necessary party thereto, and therefore the answer filed by him cannot be regarded, as he is too remotely interested in the subject matter to contest plaintiff's claim in his own right.
The adult defendants who are proper parties to the suit did not think it worth while to contest the allegations of the bill, but contented themselves with indorsing the following exceptions on the commissioner's report: "The within report is excepted to by Catherine Ziler, Susan E. Ambrose, and Sarah Cann so far as it allowrs Harrison Cann a claim against the estate, amounting, principal and interest, to four thousand nine hundred and twenty-four dollars and fifty cents, all of which should be rejected as improperly allowed." The report being in accord with the allegations of the bill, to which these defendants made no appearance, but allowed it to go uncontroverted so far as they were concerned, this exception should have been disregarded by the court, or promptly overruled, as by their silence in not pleading they have admitted the justice of the claim. As to them, neither the report of the commissioner nor any proofs are necessary to support a decree justified by their confession.
It is not so with the infant defendants, who are under the protection of the court, and whose interests must be regarded and preserved by it. The plaintiff has placed himself in an anomalous, though not inequitable position by making himself, not only as the administrator of Jacob Cann, deceased, but also as the administrator of Elizabeth Largent, deceased, defendant to his own bill. If the claim on which he sues is just beyond controversy, there could be nothing wrong in so doing, as equity readily recognizes and distinguishes between personal and representative rights, and can shape its decrees accordingly. But where the obligation of defense rests upon him in his representative capacity, equity will not permit him to make himself, in such capacity, a defendant to his own personal bill, and then treat such bill as taken for confessed as to his decedent's estate, but will require him to establish the debt claimed by him against such estate as fully and completely as though all defense that could possibly be made to such debt were properly interposed to its allowance. If this were not true, and he, by this means, secured the allowance of an illegal debt against the estate of his decedent, he would become personally liable for its payment, and so he has gained nothing by his suit. In section 5, chapter 87, of the Code, it is provided that, "if any personal representative, guardian, curator or committee shall pay any debt, the recovery of which could be prevented by reason of illegality of consideration or lapse of time, or by any other fact within his knowledge, no credit shall be given him therefor." This law applies equally as well where an individual claim of the fiduciary is presented for allowance as where a debt has been paid by him, and the duty devolves upon the court and commissioner before whom his accounts are presented to prevent the auditing against the estate of any illegal claim; wherefore it becomes incumbent on the court in this case to say whether the claim presented by the plaintiff in his personal character has been shown to be a proper charge against the estate of the decedent. The bill charges that the decedent, in pursuance of a contract made with the plaintiff to pay him a reasonable compensation for his services as a common laborer on his father's (decedent) lands, since he became twenty one years of age, executed to the plaintiff his note or due-bill on the 28th day of April, 1880, for three thousand dollars. The evidence of plaintiff shows that some time after his father's death he found this due-bill written in his father's account book. It is also shown that it was in the father's handwriting. If this due-bill had been delivered...
To continue reading
Request your trial