Gilmer's Adm'r v. Baker's Adm'r

Decision Date19 April 1884
Citation24 W.Va. 72
PartiesGILMER'S ADM'R v. BAKER'S ADM'R et al.
CourtWest Virginia Supreme Court

Submitted Sept. 19, 1883.

[a1]GREEN, JUDGE Absent.

1. By the common law a person is a competent witness in a cause, if the proceedings therein cannot be used as evidence for him although he may be interested in the question in issue and entertain wishes on the subject, and even have occasion to contest the same question in his own case in a future suit. This rule has not been affected or changed by our statute--Code, ch. 130 sec. 23--as to the competency of a person to testify against the representatives of a deceased person in relation to transactions had personally by the witness with such deceased person. (p. 83.)

2. A person jointly bound with a deceased person may testify in a suit, to which he is not a party, against the representatives of such deceased person in relation to transactions and conversations had personally with such deceased person notwithstanding the fact that his testimony tends to throw the whole of such liability, in that suit, on the estate and sureties of such deceased person. (p. 84.)

3. An admission made by an administrator in a sworn answer to a bill filed against him and others to recover a fund in his hands, that he holds said fund as administrator, while he is in fact administrator and acting as such, is admissible as evidence against his sureties as administrator in another suit brought to recover said fund from him and his sureties although the sureties were not parties to the suit in which said admission was made. (p. 86.)

4. A decree adjudicating adverse claims or rights, entered by the judge of a circuit court in vacation, by consent of the parties previously given in court and entered on the record is erroneous and, perhaps, void; sed quaere, will so much of such decree, as constitutes simply an order or direction ex parte and administrative in its character, be held erroneous, if proper in itself, merely because it was thus entered in vacation? It is held not to be void. (p. 89.)

5. An insolvent fiduciary can not transfer his mere indebtedness in one capacity to himself in another capacity so as to exonerate his sureties in the one capacity and throw the burden upon his sureties in the other. To make the transfer valid in such case it must consist of something more than a naked liability; it must be substantial assets. (p. 92.)

6. But, if substantial assets be in the hands of the fiduciary, or he is solvent and able to pay over his indebtedness in the one capacity to himself in the other capacity, all that is required to make the transfer in such case, is for him to make his election to hold it in the latter capacity and manifest that election by some act, admission or declaration, and such election will bind his sureties on his bond given in the latter capacity. (p. 92.)

Snyder, Judge, furnishes the following statement of the case:

In the year 1823, John Baker died testate in Jefferson county, leaving a widow and several children. By his will he directed his executors to sell his real estate and loan the proceeds during the minority of his children. On October 27, 1823, Baker Tapscott, a son-in-law of the testator, had the will probated in said county and qualified as sole executor. Under the provisions of the will he, as executor, on January 13, 1831, sold a tract of about three hundred and thirty-three acres of land to Samuel Engle, and made him a deed for the same. A part of the purchase-money was paid down and for the residue the purchaser executed to the executor his bonds and conveyed the land to Henry Berry and Thos. Hite, trustees, to secure the same. In 1834, the said Engle died and soon after the Washington County Bank instituted a suit in the circuit court of said county against his administrator and heirs to subject his real estate to the payment of his debts. In this suit Tapscott filed his petition stating that he as executor of Baker held a first lien for upwards of six thousand dollars on the land sought to be sold, the same being the unpaid purchase-money secured by the trust-deed aforesaid. A decree was made in said suit, November 23, 1838, appointing Henry Berry and Andrew Hunter special commissioners to sell enough of said land to pay off said trust-debt, for one-third cash and the residue in one and two years. The commissioners made the sale which was duly confirmed by the court and the commissioners were directed to collect the deferred payments of the purchase-money.

Tapscott having died prior to this time, Henry Berry, on August 20, 1838, qualified as his administrator and gave bond as such with William Short and Jas. Hite as his sureties. On April 15, 1839, said Berry also qualified as administrator de bonis non with the will annexed of John Baker, deceased, and gave bond as such in the penalty of ten thousand dollars with said William Short and Joseph McMurran as his sureties.

It appears that Tapscott had, in 1835, transferred the greater part of the aforesaid debt, due to him as executor from Engle, to J. Hopkins & Bros. as collateral security for an individual debt due from him to them. In consequence of this a controversy arose between said Hopkins & Bros. and the administrator and children of Baker as to which was legally entitled to said Engle fund then in the hands of Berry and Hunter, special commissioners of the court as aforesaid. Thereupon W. Lisle Baker, one of said children, filed his bill in said court, charging therein that said transfer of said fund by Tapscott was fraudulent and void, and making said Hopkins & Bros., Henry Berry administrator, & c., and others defendants. Hopkins & Bros. and said Berry, administrator, answered said bill, the latter stating that at the time of said transfer the said Tapscott was largely indebted to the estate of said Baker, and that there were still unsatisfied debts against said estate. Subsequently, Berry as administrator of Tapscott filed a cross-bill, alleging that said transfer to Hopkins & Bros. was usurious and void, and that when it was made Tapscott was insolvent and much in arrear in his accounts as executor of his testator, John Baker, and praying that said transfer might be declared inoperative and the fund paid over to him as administrator of John Baker, deceased.

By a decree, entered February 20, 1845, in these several causes, heard together, in vacation, by consent of parties, the court decided that the said transfer of the Engle debt by Tapscott to Hopkins & Bros. was usurious and void and " by the consent of all parties (except J. Hopkins & Brothers), by their counsel, it adjudged, ordered and decreed that Henry Berry and Andrew Hunter, special commissioners in the case of the Washington County Bank against S. Engle's administrators and heirs, do pay to Henry Berry, administrator de bonis non with the will annexed of John Baker, deceased, the funds in their hands, the proceeds of the sale of the land of Samuel Engle, deceased, made by them, retaining the usual commissions. And it is further adjudged, ordered and decreed that the bill of W. Lisle Baker and the cross-bill of Baker Tapscott's administrator, be dismissed, but without costs against them."

On November 6, 1846, Johns Hopkins, surviving partner of J. Hopkins & Bros., by leave of the court filed his bill of review, asking, upon grounds therein stated, to have the said decree of February 20, 1845, set aside. This bill was demurred to and answered by Henry Berry, administrator of John Baker and, on June 1, 1848, the court by its decree of that date dismissed the same without costs.

Johns Hopkins, on October 19, 1848, exhibited his bill against Henry Berry as administrator of Baker Tapscott and also as administrator of John Baker and obtained from the court thereon an injunction restraining " Andrew Hunter and Henry Berry, as commissioners of sale, from paying over to said Henry Berry in his character of administrator de bonis non with the will annexed of John Baker, deceased, the funds, as decreed by the court" in the aforesaid decree of February 20, 1845. By its decree of November 3, 1849, the court dissolved this injunction and dismissed the bill. From this decree the plaintiff, Johns Hopkins appealed and the cause was heard by the special court of appeals on March 4, 1856. That court reversed said decree of November 3, 1849, and ordered that the injunction awarded the appellant on the 19th day of October, 1848, be reinstated, but directed that " said injunction is not to have the effect of restraining the commissioners Hunter and Berry from paying over so much of the fund referred to in the appellant's bill as may be actually necessary to be paid over to the administrator de bonis non with the will annexed of John Baker to enable him to pay the outstanding debts against the estate of his testator."

A history of this litigation up to the date of the decree appealed from may be seen in the report of the case in 2 Pat. & H. p. 110.

In March, 1853, while said cause was pending in the court of appeals, Ann E. Gilmer, widow, one of the children and distributees of John Baker, deceased, instituted the present suit against Henry Berry, administrator of said Baker, Vincent M. Butler, administrator of William Short, deceased, Joseph McMurran and the distributees, other than the plaintiff, of said Baker, to have a settlement of the accounts of said Berry as administrator de bonis non with the will annexed of said Baker, and praying a distribution of the estate of Baker in the hands of said Berry as such administrator and for general relief.

An order was entered February 10, 1853, in vacation, which recites: " It appearing to the court that the fund arising from the sale made in this cause by Henry Berry and Andrew...

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