Crim v. England et al.
| Decision Date | 22 April 1899 |
| Citation | 46 W.Va. 480 |
| Court | West Virginia Supreme Court |
| Parties | Crim v. England et al. |
1.Executors Liability of Sureties Decree Evidence.
A decree against an executor, rinding a sum of money in his hands from assets, is prima facie evidence against the sureties in his bond. (p. 483).
A judgment or decree against an executor in favor of a creditor, payable out of assets, is conclusive evidence upon the exector and his sureties as to the existence and justness of the demand. (p. 483).
3.Executors Attorney's Fees.
Reasonable fees of counsel may be paid by an executor or administrator out of the assets, as part of the expense of administration, and if not paid by him, are a lawful charge on the assets. (p. 483).
4.Executors Attorney's Fees Liability of Sureties.
If a court, in a suit administering assets of a decedent, allow an attorney's fees for services rendered the executor or administrator in the administration, and direct payment by him out of a balance of assets found by the decree to be in his hands, it is a valid demand against the sureties in his bond. (p. 485).
5.Executors Disch a rge No tes.
If there is a valid demand binding assets of a decedent, it is not discharged merely by reason of the fact that the executor gives a note therefor signed by him, with the addition to his name of the words, "Executor of, Deceased." (p. 484).
3. Parent and Child Gift of Land Certainty.
If a father give a son an undivided moiety of a specific tract of land, saying it is to be the west end of the tract, the gift is sufficiently certain and definite, as to the land given, to be enforced. (p. 487).
7. Gift of Land Consideration Possession Improvements.
In case of an oral gift of land on meritorious consideration, mere delivery of possession will not render the gift enforceable;: but if, in faith of the gift, the donee make valuable improvements, it will be enforced in equity by a conveyance. (p. 487).
8. Gift of Land Liability for Debt.
A valid oral gift of land, made before the donor incurs a debt. Land not liable therefor. (p. 487).
Appeal from Circuit Court, Barbour County.
Suit by J. N. B. Crim against Jasper England and others. Decree for defendants, and plaintiff appeals.
Decree reversed, and bill dismissed in part as to England. J. Hop Woods, for appellant.
Dayton & Dayton, F. O.Blue, and W. B. Kittle, for appellees.
In 1875, James W. Trahern and John F. Trahern executed a bond, as administrators of James Trahern, deceased in which John England and William Nestor were sureties. In a. chancery suit brought in 1876, in the circuit court of Barbour County, by Francis White, executor, etc., against said administrators and the heirs of James Trahern, to administer his estate for payment of his debts, a decree was pronounced, in 1880, finding the administrators in arrear in a certain sum for assets in their hands, and. directing the payment out of the same of two debts, one to Bradford of five hundred and thirty-one dollars and fifty cents, and one to Brown of seventy-seven dollars and forty-three cents, which debts were later assigned to Joseph N. B. Crim. John England died leaving land, part of which he devised to his sons, Jasper and James England, and part he directed to be sold, and its proceeds divided among certain of his heirs. William Nestor died leaving land, which descended to his heirs. In February, 1886, Crim brought the chancery suit now in hand for several purposes, particularly to subject to his debts the land devised to Jasper and James England by their father, John, and the land left by Wlliiam Nestor in the hands of his heirs, and to subject some purchase money in the hands of Lawless, a party who purchased land devised by England to be sold, and to make the England legatees, who got money from such land, refund the same for the payment of his debts. Jasper England defended, but James England and the Nestor heirs did not. The court dismissed the bill, and Crim appealed.
Jasper England's answer sets up, in defense of his land, that the demands of Crim never were debts binding on the estate of James Trahern, and therefore not chargeable on its assets in the hands of James W. Trahern and John F. Trahern, his administrators, and therefore could not bind England as a surety in the bond of the administrators. It also sets up the further defense that his father, John England, in his lifetime, gave him the tract of land sought to be subjected by Crim, and that, under the promise of the father that he should have it, he took possession of and improved it, and resided upon it, claiming it adversely to the world; so that it is, in no event, liable to Crim's demand.
The first defense made by Jasper England presents the question of the effect of the decree in the White suit in favor of Bradford and Brown for their debts, now owned by Crim, and declaring that they were chargeable upon the personal assets of James Trahern, deceased, and finding in the hands of his administrators a sum sufficient to pay those debts, and decreeing that out of that fund his administrators should pay those debts as primary charges upon that fund. John England, the surety in the bond, not being a party to that suit, but the administrators being parties, what was the force of that decree upon England, as a surety in the bond, to show that sufficient assets were in the hands of the administrators to pay those debts, and to show that those debts were valid debts binding those assets, and therefore should have been paid by the administrators? Does that decree bind England? If it does, his lands are chargeable with the debts. The general law is that a judgment against an administrator or executor for a debt, or a decree for a balance in his hands, is conclusive upon the sureties in his bond, though they are not parties. The Supreme Court held that Stovall v. Banks, 10 Wall. 583. See 2 Brandt, Sur. section 580; 2 Black, Judgm. section 589; 1 Freem, Judgm. section 180. But in the Virginias it is not conclusive, but only prima facie. State v. Nutter, 44 W. Va. 385, (30 S. E. 67); 1 Lomax, Ex'rs, 331; Hobson v. Yancey, 2 Grat. 73; Craddock v. Turner, 6 Leigh, 116. I am of opinion that the finding of assets in the administrator's hands is not conclusive, but prima facie, because of a peculiar Virginia statute found in Code 1891, c. 85, s. 24, that no executor or surety shall be chargeable beyond assets by reason of any omission or mistake in pleading, and may offer any defense admissible in an action against the executor suggesting a devastavit. I think it is that which makes the difference between our law and the general rule. But that does not touch the point of how far a judgment or decree establishing a creditor's debt against the executor is conclusive as to its existence, amount, and justness. Here it is conclusive, not prima facie, Per Judge Green in Davis v. Rowe, 2 Rand. 416; 2 Lomax, Ex'rs, side page 458, top page 721. This is under the general principle stated in Bensimer v. Bell, 35 W. Va. 15, (12 S. E. 1078, Syl., point 5), that "a judgment in favor of A. against B. for a debt is conclusive, not only between the parties, but even as to strangers, to establish the existence and amount of the liability, and strangers can only impeach for fraud or collusion." Morris v. Murphy, (Ga.) 22 S. E. 635. But let us examine. The decree in the White case declares that the debts in question had grown out of the administration of Trahern's estate, and were primary charges on the personal assets. Depositions show that Bradford and Brown were attorneys for the administrators in their administration. Reasonable fees paid counsel are always allowed as credits to the administrators. Schouler, Ex're, section 544; Lindsay v. Howerton, 2 Hen. & M. 57. If the administrator may lawfully pay counsel fees, it follows that services rendered, and not paid, but which he wrongfully neglected to pay, may be decreed to be paid out of assets found in his hands unexpended.
Counsel for England say that John England was dead when the debts arose, meaning when the administrators gave their notes therefor. I see no force in this fact. When he signed the bond, he undertook for the administration Of the assets by his principals, whether he was dead or alive, during the administration; and, if Bradford and Brown became entitled to payment out of the assets during the progress of administration, how can it matter whether the surety was dead or alive at the time when the service creating a charge on such assets was performed? This argument overlooks the fact that counsel fees are, under our law, a part of the very charge of administration, and as binding on the estate as a debt created by the decedent in life, more so. It is contended that, as the administrators gave Bradford and Brown notes for this compensation, signed by them, with the addition after their names of ''Administrators of James Trahern, Deceased," these words are mere descriptio personarum, and have no effect to change the legal liability thereon, and they are the individual notes of the administrators personally, and not the notes of the estate.. As notes they are the notes of those parties. Of their intrinsic force, per se, they bind them only, as the words in notes signed, "James Bennett, Agent for Lewis County," were held to be notes of Bennett, not binding on the county. Exchange v. Lewis Co., 28 W. Va. 273. See Rand v. Hale, 3 W. Va. 495; Early v. Wilkinson, 9 Grat. 71. But that was a debt which Lewis County could not contract. If an action at law were brought on such notes, it would be proper to sue the signers as individuals, ignoring those...
To continue reading
Request your trial