Colley v. Calhoun

• Decision Date: 01 November 1921
• Docket Number: No. 4206.,4206.
• Citation: 89 W.Va. 399
• Court: West Virginia Supreme Court
• Parties: Alex Colley, Adm'e. v. A. L. Calhoun.

89 W.Va. 399

Alex Colley, Adm'e.

v.A. L. Calhoun.

No. 4206.

Supreme Court of Appeals of West Virginia.

Submitted October 25, 1921.

Decided November 1, 1921.

1. Executors and Administrators Appointment in County Where Deceased Did Not Die or Leave Estate Cannot be Collaterally Attacked.

An appointment of an administrator in a county in which the intestate left no estate and did not reside at the time of his death, is not void and cannot be collaterally attacked. Although voidable, it is treated as valid and allowed full operation, until vacated or otherwise abrogated. (p. 400).

2. Same In Administrator's Action to Recover Debt Evidences of Appraisal Required by Statute are Properly Admitted in Edivence.

In the trial of an action by an administrator to recover money due the estate of the decedent, evidences of debt bearing the appraisal endorsement required by sec. 12, ch. 85, Code, are properly admitted and constitute sufficient proof of appraisement, even though the appraisers may have been appointed in a county other than that contemplated by law. The place of appraisement is not of the assence of the statutory requirement. (p. 401).

Error to Circuit Court, McDowell County. Action by Alex Colley, administrator, against A. L. Cal- houn. Verdict for plaintiff was set aside, a new trial awarded, and plaintiff brings error.

Reversed, and judgment for plaintiff on verdict.

Cecil H. Riley, and Litz & Harman, for plaintiff in error. G. L. Counts, for defendant in error.

Popfenbarger, Judge:

The argument submitted on this writ of error tacitly, if not expressly, admits the order setting aside the verdict found for the plaintiff and awarding the defendant a new trial, of which complaint is made, stands upon the assumption of invalidity of the plaintiff's letters of administration and consequent lack of right to maintain the action brought by him for recovery of money due the estate of "Wise Robinson, his intestate.

He took out his letters of administration in the county in which Robinson died, Mercer County, but it is urged that the permanent residence of the intestate was in McDowell County. Being a resident of McDowell, he went to Bluefield in Mercer, for treatment in a hospital, and there died two or three weeks later. After his death and the appointment of his administrator, the documentary evidence of indebtedness, constituting the basis of this action, was found in his trunk at the place of his residence at the time of his departure for Bluefleld.

Permanent or legal residence of the decedent in McDowell County being conceded for the purposes of this inquiry, the appointment was not void, but only voidable, and cannot be collaterally attacked or assailed. For the correctness of this holding, it suffices merely to cite the following decisions apxuying the principle in cases dependent upon strikingly similar facts and circumstances. Tomblin v. Reck, 73 W. Va 336; Wells v. Simmons, 61 W. Va. 105; Findley v. Findley, 42 W. Va 381; Starcher v. South Penn Oil Co., 81 W. Va. 587; Cicerello v. C. & 0. Ry. Co., 65 W. Va. 439; Allen v. Linger, 78 W. Va. 277. An appointment of an administrator by the county court of a county in which the decedent left no estate, is merely voidable, not void and not open to collateral attack. Fisher v. Bassett, 9 Leigh 119; Andrews v. Avory, 14 Gratt. 229. These two decisions stand upon facts of exactly the same nature as those...