Dickel v. Smith

• Decision Date: 08 April 1896
• Citation: 24 S.E. 564,42 W.Va. 126
• Parties: DICKEL. v. SMITH et al.
• Court: West Virginia Supreme Court

24 S.E. 564

42 W.Va. 126

DICKEL.

v.SMITH et al.

Supreme Court of Appeals of West Virginia.

April 8, 1896.

Trustees — Improvement of Trust Property — Reimbursement.

Where a trustee in good faith expends his own funds in improving the property of the cestui que trust, and the property is enhanced in value by such improvements to the extent of the expense thereof, such trustee is entitled to be reimbursed such expense out of the increased rents occasioned by such improvements.

(Syllabus by the Court.)

Appeal from circuit court, Wood county.

Action by H. P. Dickel, committee of Delia Doer, against W. H. Smith, Jr., and others. Judgment for defendants, and plaintiff appeals. Reversed.

John A. Hutchinson and Miller & White, for appellant.

Merrick & Smith and Van Winkle & Ambler, for appellees.

DENT, J. Hubert F. Dickel, committee of Delia Doer, appeals to this court from a decree of the circuit court of Wood county, rendered on the 23d day of February, 1894, in a chancery case therein pending, wherein said committee was plaintiff and W. H. Smith, Jr., et al. were defendants. This is the second appeal in this cause. See 38 W. Va. 635, 18 S. E. 721. On the former appeal the title of W. H. Smith, Jr., to the property in controversy was held to be void, and he to be trustee thereof for the benefit of the lunatic, Mrs. Doer; and the cause was remanded to be further proceeded in according to such opinion and the rules of law and equity. After the cause was remanded the plaintiff proceeded by action of ejectment to oust the defendant Smith, and then, in the chancery suit, to compel him to account for the rents and profits. The circuit court referred the mat-ter to a commissioner, and on the coming in of his report entered the following decree, now nere complained of, to wit: "And now, at this day, to wit, at a circuit court continued and held for Wood county, at the courthouse thereof, on August 3, 1895, this cause came on again to be heard upon the bill and upon all former orders, decrees, and proceedings, and upon all papers heretofore read herein, and upon the report of C. M. Enright, special commissioner, heretofore filed, and upon the exceptions of the defendant W. H. Smith, Jr., thereto, and upon a copy of the judgment in ejectment in the case of Hubert Dickel, committee aforesaid, against the said W. H. Smith, Jr., and M. L. and M. A. Jones, which is by agreement of the parties made a part of the record of this cause, and was argued by counsel, on consideration whereof the court is of opinion that the three several exceptions of the defendant W. H. Smith, Jr., except as hereinafter decreed, are not well taken. It is therefore ordered, adjudged, and decreed that the said exceptions, and each of them, except in so far as herein decreed, be, and the same are, overruled. And the court doth find and doth adjudge, order, and decree that the net annual value of the real estate in the will and proceedings mentioned from August 2, 1882, the date when the said W. H. Smith, Jr., obtained possession thereof, to the time when the improvements were made thereon by him, in June, 1888, was $76, and that the net annual value thereof from the time said improvements were made, not taking into consideration the increased value resulting from said improvements, to March 10, 1890, the date of the death of the life tenant, Anton Doer, was $76, and that the aggregate annual value from said 10th day of March, 1890, to the 3d day of March, 1894, the date of the judgment in ejectment aforesaid, including interest to this date, is the sum of $354.04. The court being of the opinion, and doth now adjudge, order, and decree that the said W. H. Smith, Jr., is not liable to account to the said complainant for the increased annual value of said property resulting from the improvement made by said Smith, to wit, the sum of $200 per annum, as found by said Commissioner Enright. The court doth further find and doth adjudge, order, and decree that the value of the improvements or repairs made by the said W. H. Smith, Jr., in June, 1888, while he was occupying the said property as life tenant, was as of the date of the death of said Anton Doer the sum of $1,248; and in consideration whereof the court is of the opinion, and doth further adjudge, order, and decree, that the said W. H. Smith, Jr., is not liable to account to the said complainant for the annual value of said property at the rate of $200 per annum, but is liable to account to him therefor at the rate of $76 per annum, but that he is entitled to offset the value of said improvements against the said sum of $354.04, the aggregate sum aforesaid; but the court is of the opinion, and doth adjudge, or der, and decree, that the said Smith is not entitled to be reimbursed, nor to have a decree against the complainant nor the estate of said Delia Doer, for the...