Casto et al v. Kintzel et al.

• Decision Date: 25 February 1886
• Citation: Casto et al v. Kintzel et al., 27 W.Va. 750 (W. Va. 1886)
• Parties: Casto et al v. Kintzel et al.
• Court: West Virginia Supreme Court

27 W.Va. 750

Casto et al

v.Kintzel et al.

Supreme Court of Appeals of West Virginia.

Submitted January 23, 1886.

Decided February 25, 1886.

1. "K." having died intestate seized of 296 acres of land left surviving him his widow and also ten children, his heirs at law. The dwelling-house upon the land having been destroyed in his lifetime, his widow, who became his administratrix, built a new dwelling-house thereon and cut, sold and removed from the land large quantities of its most valuable timber. In a suit brought by some of the heirs against the others and the widow to have partition of the land, and also to charge the widow with the value of the timber so taken, sold and removed she claimed that the estate was indebted to her for moneys paid by her as administratrix in discharge of the debts of the intestate, and also for the value of the dwelling-house, which she had erected on the land; Held:

I. The widow was chargeable with the value of the timber cut, sold and removed by her,

II. The value of this timber was properly applied to extinguish pro tanto, the amount due tocher as such administratrix from the estate of her decedent.

III. The dwelling-house having been erected on the land without the consent of the heirs of her husband, she is not entitled to charge the estate with the value thereof.

IV. The widow is entitled to be endowed of one full fair third of the land according to quantity and quality, as it was at the time of her husband's death, and in addition thereto with the use of the dwelling-house which she erected thereon.

V. The shares of two or more of the heirs, who or whose guardians may so elect, may be assigned and allotted to them in one parcel.

VI. The heir is entitled to have his share of the land in kind allotted to him in severalty, and it is only, when circumstances exist, which render a fair partition impracticable, that the court is justified in exercising its extraordinary power of directing the lands to be sold in lieu of making partition thereof in kind.

Charles E. Hogg for appellants.

Tomlinson $ Paisley for appellees.

Woods, Judge:

In 1876 Gotleib Kintzel died intestate seized of 296 acres oi land in Mason county, West Virginia, leaving surviving him his widow Margaret Kintzel who afterwards qualified as his administratrix, and ten children, viz: Elizabeth who intermarried with Samuel Casto, Augustus Kintzel and Edward Kintzel children by a former wife, and Emma, Elmira, Mag- gie, Harriet, Flora, Gotleib and Lewis Kintzel, his heirs at law, the last five of whom were infants. Said intestate became insane, set his house on fire, consumed it with all its contents and then committed suicide. His personal property did not exceed $200.00 in value, which his widow claimed under the law exempting certain property from forced sales for the payment of debts. By the industry and economy of the widow, she succeeded in paying the taxes on the land, and debts due from her husband's estate to the amount of $401.16. From timber cut from the land, and other sources of her own, she erected thereon a new dwelling-house for the use of herself and said children, which is admitted to be worth at least $350.00, and is variously estimated by the witnesses to be worth from $500.00 to $700.00.

At July rules 1879, Samuel Casto and his wife Elizabeth Casto, Augustus Kintzel and Edward Kintzel filed their bill in the circuit court of Mason county, against Margaret Kintzel in her own right, and as the administratrix ot Gotleib Kintzel deceased, and against his other heirs, praying that partition of the 296 acres of land might be made, subject to his widow's right of dower therein. The infants answered by their guardian ad litem, and on November 18, 1879, the cause was regularly heard, and commissioners were appointed to assign dower, and make partition of the land, if in their opinion the same could be done in kind, without loss or injury to the parties, and if not to report that fact with the reasons on which their opinion was founded. The commissioners reported such' partition impracticable, but assigned dower by metes and bounds to the widow, but neither their report nor the reasons, relied upon to show that the land was incapable of partition, appears in the transcript of the record before us.

On February 19, 1881, Margaret Kintzel in her own right and as such administratrix, answered the bill alleging the death of her husband, and the destruction ot her dwellinghouse, and all of its contents including the clothing of the family, under the circumstances hereinbefore stated; that she qualified as his administratrix; that his whole personal estate did not exceed $200.00 which under the statute a husband or parent residing in this State is authorized to set aside as exempt from forced sale; that out of her own private means she had paid debts and charges against her husband's estate to the amount of $500.00; that she had replaced the burnt house by another erected by herself out of her own means for the use of herself and family which cost her $450.00 and claimed that she was entitled to stand as a creditor against her husband's estate, for the amount so paid by her on the charges against her husband's estate, and for the value of the dwelling house which she erected on the land. She prays that the debts due from her husband's estate may be ascertained and the payment thereof provided for; that she may be repaid the amounts so paid by her upon his debts, together with the value of said dwelling house.

She prays that in the partition of the land, the shares of her four infant daughters Almyra, Margaret, Flora and Harriet, may be laid off together as one parcel, and that her dower may be assigned to her adjoining them, and that so much of her husband's debts as may be chargeable upon said tour shares may be apportioned thereon, which she avers she is willing to pay, and thus save the lands from being sacrificed at public sale, and for general relief.

On May 10, 1881, an amended and supplemental bill was filed, the sole purpose of which was to charge the said Margaret with waste committed by her upon the land since her husband's death by cutting and removing therefrom a large amount of valuable timber, converting the same to her own use to the value of $1,009.00, and praying that she should be compelled to account for the value of timber so taken, and for general relief. The cause was referred to a commissioner with instructions "to take, state and report an account of all indebtedness against the estate of Gotleib Kintzel, deceased, showing the names of the parties to whom said debts are due, their. nature, amount and priorities." The commissioner returned his report, wherein he reported that the only debt due from the estate ot the deceased were $158.60 to Michael Beysley and $401.16 to the said Margaret, as the administratrix of said decedent and that she was chargeable with the sum of $398.31, on account of the timber taken by her from the land since her husband's death for which she had never accounted; and that the dwelling which she erected on the farm was variously estimated by the witnesses to be worth from $350.00 to $700.00; and that the annual rental value of the land was from $100.00 to $125:00, but he declined to report whether she was or was not entitled to compensation for the erection of the dwelling house. This report was not excepted to by any of the parties, and on May 12, 1882, the cause was again heard, when the court by its decree confirmed the commissioners' report, and adjudged that Margaret Kintzel is entitled to be paid out ot the estate of said decedent the "sum...