Hanly v. Potts

• Decision Date: 14 January 1903
• Citation: 52 W. Va. 263,43 S.E. 218
• Court: West Virginia Supreme Court
• Parties: HANLY. v. POTTS et al.

43 S.E. 218

52 W. Va. 263

HANLY.

v.POTTS et al.

Supreme Court of Appeals of West Virginia.

Jan. 14, 1903.

APPLICATION OF PAYMENTS—CLAIMS AGAINST DECEDENT'S ESTATE—SERVICES.

1. H., a merchant, and P., a farmer, had a settlement in February, 1891; P. executing his note to H. for balance due, $204. P. continued thereafter to deal with H. on open account, and selling to H. from time to time, for a period of some four years, products from his farm, the price of which was entered, as delivered, on the books of H. to the credit of P.'s current account. P. did not direct the application of the price of such products. It will be presumed that P. knew how the same was applied, and after the death of P. his administrator will not be allowed to offset the price of such products against said note, so given on settlement, and have the benefit of the statute of limitation against said open account of H.

2. Calvin P. and Mollie P. owned adjoining farms, were both unmarried, were cousins, lived together at the house of M. P., eating at the same table, and each furnishing supplies therefor, for a period of at least 40 years, until the death of C. P., during which time they kept no accounts between them, never made a settlement, and neither presented a bill to, nor made a claim against, the other. A part of the stock on the farms they owned in common, and a part separately and individually; but the stock was fed indiscriminately from the products, and upon both farms. No contract or agreement was made or existed between them for the payment of any board by him, or that either should pay to or receive from the other anything for services rendered. Held, that the relations existing between the parties and the circumstances were such as to raise the presumption that all such services were gratuitous, and neither expected to make any charge against the other or to pay anything to the other.

(Syllabus by the Court.)

Appeal from circuit court, Mason county; F. A. Guthrie, Judge.

Suit by John S. Hanly against John B. Potts, administrator, and another. Decree for plaintiff, and defendants appeal. Affirmed in part, and reversed in part.

J. L. Whitten and D. C. Casto, for appellants.

C. E. Hogg, L. C. Sommerville, and W. R. Gunn, for appellee.

McWHORTER, J. Calvin Potts died In October, 1896, intestate, leaving certain lands, and but little personal property; bis brother, John Potts, being sole heir at law, to whom his real estate descended. John B. Potts was duly appointed administrator of said Calvin. In December, 1896, John S. Hanly, claiming to be a creditor of the said estate, suing on behalf of himself and all other creditors of said decedent, filed his bill In the circuit court of Mason county against John B. Potts, administrator, and John Potts, defendants, alleging that the personal estate of said decedent was wholly insufficient for the payment of the debts of the estate, and praying that the cause be referred to one of the commissioners of the court, to ascertain and report the indebtedness of the estate, to whom owing, the respective priority of the debts, how evidenced, to settle the accounts of the administrator, and to ascertain and report of what real estate decedent died seised, and that so much of said real estate as it might be necessary for the purpose be sold to pay the debts of plaintiff and the other creditors of the estate. The defendants, John B. Potts, administrator, and John Potts, filed their demurrer to the bill, which was overruled, and John Potts filed his answer, to which answer plaintiff replied generally. The cause was referred to Commissioner H. R. Howard, who was directed to state and report an account showing the real estate of which Calvin Potts died seised and possessed, and the liens and priorities thereof, and what other debts besides liens, if any, existed against the estate, in whose favor, and the amount thereof; what personal property said Potts owned at the time of his death, and what disposition had been made of it; the total amount of all valid and subsisting indebtedness against the estate of said decedent, and the order of priority of payment, if any; to state and settle the accounts of John B. Potts, the administrator; and such pertinent other matters as the parties might request. The commissioner made his report, which was filed on the 26th day of January, 1898. The commissioner took a large amount of testimony concerning the accounts of the plaintiff, John S. Hanly, and especially of Mollie Potts, who filed a large account against the estate, claiming that she was entitled to recover from the estate $2,966.52, including interest. This account is made up of 12 different items, besides the interest on two of the Items. The defendants, John B. Potts, administrator, and John Potts, filed exceptions to said report. Plaintiff, Hanly, and Mollie Potts, also excepted to said report. The last exception mentioned was that the commissioner, while he found that the rental value of the real estate of which Potts died seised was $125 for the time from which John Potts took possession up to the time of the commencing of his report, had failed to charge said John Potts with said amount On the 13th of May, 1898, the defendants moved the court to recommit the report to Commissioner Howard, and filed in support of said motion the affidavit of John Potts, which affidavit, however, fails to appear in the record. The court overruled the motion, and defendants asked leave to file exceptions to said report in addition to those filed before the commissioner, and by him returned with the report. The defendants John Potts and John B. Potts, administrator, filed two several pleas besides their answers, to all and each of which the plaintiff replied generally. On the 13th of June the cause was heard upon the bill and exhibits, the said answers, and pleas and replications thereto, upon the report of said Howard, and the exceptions thereto by all the parties mentioned, and the notice to creditors to present and prove their claims before said commissioner, and upon the process duly served and published and posted, and all former decrees, orders, and proceedings, when the court overruled all exceptions to said commissioner's report, and ratified and confirmed the same; and the decree ascertained indebtedness as shown by the report, confirmed, to be $1,548.07, composed of 16 separate items. The principal contention in the matter is as to the account of $558.21 decreed to Mollie Potts, and the amount of $581.98 decreed to plaintiff, John S. Hanly. The report and decree also ascertained that there is due from the administrator to the estate, on account of the personal assets that went into his hands, $110.54, which is directed to be applied to tie debts, and decrees for the sale of the land to pay the residue of such debts, unless the same should be paid by the administrator and heirs at law within the time specified in the decree. From this decree, John B. Potts, the administrator, and John Potts, defendants, appealed.

The first error assigned is the overruling by the court of the second exception by the defendants to the report of Commissioner H. R. Howard, because there is allowed and reported therein the sum of $558.21 to Mollie Potts, as indebtedness against the estate of Calvin Potts, deceased. The exceptions to the commissioner's report filed by the defendants, John B. Potts, administrator, and John Potts, at the May term, 1898, are as follows:

"These defendants, and each of them, still relying upon the exceptions to the report of Commissioner H. R. Howard in the above-entitled cause, filed by them with said commissioner on the 24th day of January, 1898, and not waiving them, or any of them, do hereby further except to the said report, and specify more fully the grounds of the said exceptions heretofore filed:

"First. Because there is error In the said report in this: That Mollie Potts, to whom said commissioner allowed in said report, as indebtedness against said estate, the sum of $517.50, and $40.71 interest (total, $558.21), having filed an account against the estate of Calvin Potts, deceased, in the words and figures following:

Calvin Potts to Mollie Potts, Dr.

                -------------------------------------------------------------------------------
                |1802.                                                                   |    |
                |------------------------------------------------------------------------|----|
                |To one yoke of oxen sold to Potts, which he sold to E. L. Neale.        |$ 85|
                |                                                                        |00  |
                |------------------------------------------------------------------------|----|
                |To young cattle sold to Potts, and by him sold to E. L. Neale           |115 |
                |                                                                        |00  |
                |------------------------------------------------------------------------|----|
                |1896.                                                                   |    |
                |------------------------------------------------------------------------|----|
                |To sheep sold to William Blain, amounting to $54.00, of which Mollie    |27  |
                |Potts was entitled to one-half                                          |00  |
                |------------------------------------------------------------------------|----|
                |To lambs sold Wesley Cobb, amounting to $63, of which Mollie Potts was  |31  |
                |entitled to one-half                                                    |50  |
                |------------------------------------------------------------------------|----|
                |To hogs sold to E. L. Neale, amounting to $50.00, of which Mollie Potts |25  |
                |was entitled to one-half..                                              |00  |
                |------------------------------------------------------------------------|----|
                |To wool sold to E. L. Neale, amounting to $36.00, of which Mollie Potts |18  |
                |was entitled to one-half                                                |00  |

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