Dunn's Ex'rs v. Renick

Decision Date03 April 1895
Citation40 W.Va. 349
PartiesDunn's Ex'rs v. Renick et al.
CourtWest Virginia Supreme Court
1. Wills Legacies Taxes lies Adjudicata.

A will directs executors to sell certain land to pay First, a certain debt; next, a legacy to Mrs. Dunn; next, a legacy to Mrs. McNeal; and the residue of proceeds to be equally divided between them and two other children. The executors have a naked power to sell, and the legal title descends to those four children as heirs. The land sells for only enough to pay the debt and the principal of Mrs. Dunn's legacy. Taxes on the land subsequent to testa- tor's death are paid by the executors, and in this Court, by 'a former decree before sale, they are held to "be entitled, as against the residuary legatees of a portion of the proceeds of said real estate, to credit for the taxes so paid." One of those children (John Dunn) is given a specific devise and legacy, field, the former decree is not -es ad judicata to fix upon any of the four residuary legatees, receiving nothing as such from the land, a liability to contribute to the payment of such taxes, either as residuary legatees, heirs, or persons.

2. Wills-Residuary Legatees Taxes.

They are not liable under the will, as residuary legatees, nor by law, as heirs, for such taxes.

3. Taxes.

Taxes are not a personal debt, or in the nature of a personal debt.

4. Will Taxes Specific Legacy.

John Dunn is not liable for such taxes by reason of his receiving other land and personalty by specific devise and bequest under the will.

5. Wills Taxes-abatement op Legacies.

Such taxes and commission to the executors on sale must be abated from Mrs. Dunn's legacy by crediting them on the money in the executor's hands going to her from the sale.

6. Wills Abatement of Legacies.

Demonstrative legacies are subject to abatement, but specific legacies are not.

7. Judgment First Day of Term.

Though a decree or judgment relate to the first day of a term, yet if the case was not ready for hearing or trial, and therefore no judgment or decree could have been given on such first day, it does not relate to the first day, but has the date of its actual entry of record.

Quaere: Do all proceedings of a court relate to the first day of a term?

Quaere: Does computation of time limiting a bill of review begin at the first day of the term, or at the date of actual entry of the decree?

8. Bill oe Review.

A bill of review must state substantially the former bill or bills, the decrees and proceedings thereon, including the decree complained of, and the point wherein the party filing it is aggrieved.

9. Bill of Review-Error of Law Depositions.

On a bill of review for error of law, that error must be collected from the pleadings, and exhibits filed with the pleadings and orders and decrees, and must be made out on facts admitted in the plaadings, or stated in the decree as facts found. The depositions can not be looked to. An error of the court in reaching a wrong conclusion as to facts upon the evidence is not correctible by bill of review, but by appeal.

10. Rill of Review-Error.

No one can correct, either by bill of review or an appeal writ of error, an error not aggrieving him.

11. Wills Executor's Sale.

A will directs a sale of land by two executors. One only is present at the public auction, but the other consented that his coexecutor make it, and ratifies and approves it. The sale is not invalid on these facts.

12. Wills TStll op Review Executor's Sale.

A will directs a sale of land by two executors. Before sale the executors bring a suit in equity to construe the will and administer the assets, making all persons interested parties, and in it decrees are made directing a sale of land by both or either of the executors. A sale is made and confirmed, and a bill of review is filed for reversal of the decree of confirmation. If there were error in the first decree, in giving power in either executor to sell, that decree being appealable and final, and relief against it by bill of review or appeal barred by limitation, reversal of the decree of confirmation would not affect it. It could not be reached by bill of review, and a sale by one executor under it would be valid, and beyond reach by such bill of review.

33. Bill op Review Supreme Court of Appeals.

No bill of review for error of law will lie to a decree of the supreme court of appeals.

Can one of two executors sell land under a will?

A. C. Snyder for appellants, cited 33 W. Va. 476, 480, 481, 482, 483; 19 Gratt 438; 78 Va. 215; 15 W. Va. 732, 766; 16 W. Va. 32.

Brown, Jackson & Knight for appellee, John R. Dunn, cited 2 Lomax Ex'or, side p. 152; 33 W. Va. 476; 67 Md. 498; 16 Pa. St. 275; 1 P. Wm. 779; 2 Ves. 194; Rop. Leg. 456; 18 W. Va. 441; 16 W. Va. 32.

J. W. Arbuckle for appellees, cited 33 W. Va. 476; 10 W. Va. 130; 78 Va. 223; 19 Gratt. 473; 15 W. Va. 767; Code, p. 123; 21 W. Va. 777; 33 W. Va. 430; 12 W. Va. 394.

Brannon, Judge:

John W. Dunn died leaving four children Lizzie J. Renick, Kate V. McNeal, John R. Dunn and Henry C. Dunn. By his will he gave a tract of land called the "Home Place" to John R. Dunn, and certain personalty. He directed the sale of a storehouse in Lewisburg, and that out of its first proceeds there should be paid to his daughter Kate V. McNeal one thousand dollars, and that the residue go to John R. Dunn. He gave to a servant fifty dollars. He gave to Lizzie J. Renick an indebtedness against her husband. And he directed that his executors, at such time as they should judge would promote a sale for the largest price, should sell certain land in Kanawha county, and that out of its first proceeds they pay certain indebtedness (about three thousand dollars) of his son Henry 0. Dunn, and secondly pay seven thousand dollars to Sallie P. Dunn, wife of Henry C. Dunn, upon certain trust; and he directed that out of a fund formed from the residue of the proceeds of sale of the Kanawha land and the collection of debts due him, his executors pay, first, seven hundred and thirty five dollars to Kate V. McNeal, and that its residue be equally divided between Lizzie J. Renick, Sallie P. Dunn, John R. Dunn and Kate V. McNeal.

The Kanawha land remained unsold for nearly seven years after the testator's death, and when sold brought ten thousand dollars only just the amount given by the will for payment of indebtedness of Henry 0. Dunn and the legacy to his wife, Sallie P. Dunn. In the interim between the death of the testator and the sale, taxes on this Kanawha land were paid by the executors.

Some five years after the testator's death the executors brought this suit in the Circuit Court of Greenbrier county to have the will construed and for other purposes; and the case once before came to this Court, and the decision then made will be found in'33 W. Va. 476 (10 S. E. Rep. 810). This Court then decided that the taxes so paid should be refunded the executors. When the case went back to the Circuit Court from this Court, a further executorial account was stated, and a balance was ascertained to be due the executors of one thousand six hundred and ninety nine dollars and fifteen cents, made up of taxes paid by them on the Kanawha lands, the commission to the executors on its sale, and costs in this suit. The Circuit Court decreed that the executors, out of money arising from the sale of the Kanawha land, retain the said balance found due them, which operates to make the legacy to Sallie P. Dunn pay the whole of it, by abating it that much. Henry C. Dunn and Sallie P. Dunn appeal.

For them it is contended that such balance in favor of the executors is chargeable equally on the four persons who are the legatees of any residuum which might remain from the sale of the Kanawha land after paying the ten thousand dollars given to pay. first, the indebtedness of Henry 0. Dunn, and next the legacy to Sallie P. Dunn, and next the legacy to Kate V. McNeal, and that as two of them (Mrs. Renick and Mrs., McNeal) are insolvent, it ought to be paid by Sallie P. Dunn and John R. Dunn. It is claimed that this is enexorably so, by reason of the former decision of this Court; that it is res ad judicata as to this.

Let us see as to this. This Court, in its former decision in the case, held "that the executors had a naked powder to sell, without any title vested in them, but that title vested in the four children, as heirs, and that if the heirs permitted the land to be returned delinquent for taxes, and the executors to prevent the loss of the land, paid taxes, they would be entitled as against the residuary legatees of a portion of the proceeds of said real estate, to credit for the taxes so paid." Judge Snyder, in the opinion, said: "The title to this farm descended to and vested in the heirs, subject to the naked authority in the executors to sell it in the manner prescribed by the will. The heirs (that is, the four children of the testator) were liable as the owners, for the taxes on the farm. * * * If it was not the duty of the executors to preserve the farm by paying the taxes, it is certain that the heirs can not justly complain that they, in good faith, under a belief that it was their duty to do so, did wdiat the heirs neglected to do. The payment of these taxes was for the benefit of the estate, and, those entitled to the residuum being those whose duty it was to pay them, it is entirely equitable that the executors should be credited with the amount, as against the residuary legatees for whose benefit the payment was made."

This holding of the court, as explained by this quotation from the opinion, makes the foundation on which rests the plea of res adjudicata. Now, at the date of that decision the land had not been sold. It could not then be foreseen what it would sell for, or whether there would be or would not be any balance, after paying the ten thousand dollars given to Henry C. Dunn's debts and his wife, Sal lie P., and Mrs. McNeal, to go to the residuary...

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