Clark v. Clark
| Decision Date | 27 February 1912 |
| Court | West Virginia Supreme Court |
| Parties | CLARK. v. CLARK et al. |
CLARK.
v.
CLARK et al.
Supreme Court of Appeals of West Virginia.
Feb. 27, 1912.
1. Guardian and Ward (§ 127*)—Guardian Ad Litem — Accounting and Settlement by Administrator.
In a suit by an administrator to settle his accounts and charge the land of infant heirs with an overpayment on debts of the decedent, the court allows their guardian to file a petition contesting the administrator's demands, and makes him a defendant with leave to make defense. There is no reversible error in this. It is equivalent to appointing the guardian as guardian ad litem.
[Ed. Note.—For other cases, see Guardian and Ward, Cent. Dig. § 433; Dec. Dig. § 127.*]
2. Equity (§ 406*)—Commissioner—Report —Notice.
When a commissioner in chancery has completed a report, he must notify counsel of its completion; but the statute does not say any length of time of notice before filing the report after completion.
[Ed. Note.—For other cases, see Equity, Dec. Dig. § 406.*]
3. Appeal and Error (§ 177*)—Presentation of Questions in Lower Court—Report of Commissioner in Chancery.
When an attorney has been notified of the completion of a report, and makes exceptions to it after its return, it cannot be specified as error in the appellate court that the time of notice was too short before filing the report, when no application for further time to the court below was made.
[Ed. Note.—For other cases, see Appeal and Error, Dec. Dig. § 177.*]
4. Pleading (§ 36*) — Conclusiveness on Pleader.
A direct, specific admission of a fact in a pleading is binding and conclusive on the party making it.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 81-86; Dec. Dig. § 36.*]
Appeal from Circuit Court, Randolph County.
Bill in equity by George O. Clark, administrator, against George O. Clark and others. From a decree for defendants, plaintiff appeals. Affirmed.
Claude W. Maxwell, for appellant.
H. Roy Waugh and Samuel T. Spears, for appellees.
BRANNON, P. George O. Clark was appointed administrator of the personal estate of his deceased wife, Alcinda Clark. She died leaving personal and real estate. She left six children. Three of them were of tender years, when she died in 1904. One, Orda, was then five years old, and Alcinda and Carrie, twins, mere babies a few days old. George O. Clark brought a suit against his children in the circuit court of Randolph county asking the court to cause a settlement of his accounts as administrator to be made, and alleging that he had paid many debts of his dead wife in excess of her personal estate, leaving her estate in debt to him in the sum of $2,272.16, and praying that her land be sold therefor. H. B. Morgan was appointed guardian for three of the infants, Orda, Alcinda, and Carrie Clark, and he as guardian presented a petition in Clark's suit, asking to be made a defendant in order that he might contest the claim made by Clark of indebtedness against his wife's estate, and that the petition be treated as his answer. That petition denied such indebtedness. The court allowed the petition to be filed and ordered that Morgan as guardian be made defendant and allowed to defend the case. The court assigned a guardian ad litem for all the infants, and he filed their formal answer, making no allegations, but placing the rights of the infants under the care of the court. The court referred the case to a commissioner in chancery to report what personal estate Alcinda Clark owned at her death, and what disposition thereof the administrator had made, and how much, if any, personal estate was in his hands as administrator available for payment of debts, and to settle the accounts of George O. Clark as administrator, and to report and specify what debts Alcinda Clark owed at the time of her death, and what real estate she left. The contesting parties, George O. Clark and the guardian, Morgan, appeared before the commissioner, and a hearing was had, and the commissioner reported, upon all the evidence before him, and his report found a balance due from the administrator to the estate of $772.47. Clark filed exceptions to this report. The court overruled the exceptions and confirmed the report, and decreed that George O. Clark had in his hands as administrator $772.47, and decreed that Clark pay that sum to the estate, and pay to Morgan as guardian for...
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