Caswell v. Caswell

Citation100 S.E. 482
CourtSupreme Court of West Virginia
Decision Date30 September 1919
PartiesCASWELL. v. CASWELL et al.

100 S.E. 482

CASWELL.
v.
CASWELL et al.

Supreme Court of Appeals of West Virginia.

Sept. 30, 1919.


(Syllabus by the Court.)

Certified to Circuit Court, Wood County.

Suit by Mattie R. Caswell against Cora C. Caswell, executrix of W. S. Caswell, de-

[100 S.E. 483]

censed, and others, to establish dower and for an accounting. Plaintiff's motions to strike out certain parts of the answers overruled, and the rulings certified. Reversed in part and affirmed in part, and decision ordered certified back to circuit court.

W. M. Straus and Geo. W. Johnson, both of Parkersburg, for plaintiff.

McCluer & McCluer and Smith D. Turner, all of Parkersburg, for defendants.

WILLIAMS, J. W. S. Caswell departed this life testate in July, 1910, devising his property, real and personal, to Cora C. Caswell, his second wife, and appointed her his executrix without bond. Mattie R. Caswell, claiming to be the lawful wife of said W. S. Caswell at the time of his death, brought this suit praying to have her dower assigned in the real estate of which said W. S. Caswell was seized during coverture, and also for her distributive share in his personal estate. Plaintiff alleges that by writing dated 20th of October, 1891, said W. S. Caswell settled upon her the sum of $750 per year, payable at the rate of $62.50 each month during her life; that the personal property which passed into the hands of the aforesaid executrix is liable to the payment of the same, and that said executrix is in possession of, using, and converting the same to her own uses to such an extent that there will be none of it left to pay her the aforesaid annuity. She prays for an accounting of the personal fund by said executrix, including the rents, issues, and profits derived from the real estate since her said husband's death, and for an assignment of dower in the real estate.

W. S. Caswell, after his marriage to plaintiff, conveyed to third parties certain portions of his real estate, and his grantees, and those claiming under them, are made parties to the bill. Cora C. Caswell and the other defendants demurred to the bill, which demurrers were overruled. They then filed their answers, averring that W. S. Caswell was married to plaintiff May 2, 1877; that he died June 15, 1916, testate, and by his will dated March 31, 1909, probated in Wood county, July 3, 1916, devised and bequeathed all his property, both real and personal, to his wife, Cora C. Caswell, except the annuity of $750, to be paid in monthly installments of $02.50 each to the plaintiff during her lifetime, but that she should have no other share in his estate: that Cora C. Caswell was appointed his executrix; that the will was duly probated in Wood county, and the probate order of the county court of said county is now in full force and effect; that said executrix has paid to plaintiff, since the death of the testator, the aforesaid monthly installments, and the same have been accepted by the plaintiff; that whether or not Mattie R. Caswell was the wife and is now the widow of said testator, she is, nevertheless, barred of any other interest in his estate.

The answer further avers that a suit was instituted in the district court of Logan county, Okl., then a territory, but now the state of Oklahoma, in which W. S. Caswell was the plaintiff and Mattie R. Caswell was the defendant, and that on the 29th of July, 1895, a decree was rendered therein granting said W. S. Caswell an absolute divorce from Mattie R. Caswell; that said decree became absolute on the 29th of January, 1896, and has not been reversed, and is now in full force and effect. The answer exhibits a transcript of the record of the proceedings and decree rendered in said Oklahoma suit, and further avers that in July, 1893, this plaintiff left her then husband, the said W. S. Caswell, without such cause as would entitle her to a divorce either from the bonds of matrimony or from bed and board, and, without just cause and of her own free will, lived separate and apart from him, and was so living at the time of his death; wherefore it is alleged that, under the provisions of section 7 of chapter 65 (sec. 3655) Code, she is barred of dower, and of all right to claim a distributive share in his personal estate. It also avers that W. S. Caswell was not seized, at any time during the existence of his marriage to Mattie R. Caswell, of an estate of inheritance in any of the parcels of real estate mentioned and described in the bill, except a lot on Avery street conveyed to him by Mrs. C. L. Caswell by deed dated September 3, 1888. The answer admits that W. S. Caswell, previous to obtaining the divorce in the district court of Logan county, Okl., settled upon the plaintiff an annuity of $750, payable at the rate of $62.50 per month during her life, and secured the same by a deed of trust on a lot situated in Parkersburg at the corner of Market and Eleventh streets, which property it avers rents for at least $91 per month, and that said annuity...

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30 cases
  • Bennett v. Bennett, 10444
    • United States
    • Supreme Court of West Virginia
    • May 27, 1952
    ...... He relies upon the cases of Fink v. Fink, 103 W.Va. 423, 137 S.E. 703; Caswell v. Caswell, 84 W.Va. 575, 100 S.E. 482; Chesapeake & O. Railway Co. v. McDonald, 65 W.Va. 201, 63 S.E. 968; Smith v. Johnson, 44 W.Va. 278, 29 S.E. ......
  • Gardner v. Gardner, 10900
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    • Supreme Court of West Virginia
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    ......1 Syl., Caswell v. Caswell, 84 W.Va. 575 [100 S.E. 482]. Page 497.         6. A husband who fraudulently obtained a divorce in a court of a state in which ......
  • State ex rel. Lynn v. Eddy, 12748
    • United States
    • Supreme Court of West Virginia
    • October 1, 1968
    ...... See also Caswell v. Caswell, 84 W.Va. 575, 100 S.E. 482; Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279, 143 A.L.R. 1273; Williams v. North ......
  • Webber v. Offhaus, 10120
    • United States
    • Supreme Court of West Virginia
    • December 12, 1950
    ......Thomas, 117 W.Va. 550, 186 S.E. 304; Caswell v. Caswell, 84 W.Va. 575, 100 S.E. 482; Freeman v. Carnegie Natural Gas Company, 74 W.Va. 83, 81 S.E. 572; Board of Education v. Berry, 62 W.Va. 433, ......
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