Harris v. Orr

• Decision Date: 08 April 1899
• Citation: 33 S.E. 257,46 W.Va. 261
• Court: West Virginia Supreme Court
• Parties: HARRIS. v. ORR et al.

33 S.E. 257

46 W.Va. 261

HARRIS.

v.ORR et al.

Supreme Court of Appeals of West Virginia.

April 8, 1899.

Administrator—Liabilities —Reasonable Care —Failure to Sue—Support of Parent.

1. An administrator, pursuing such course as a judicious man, looking alone to his worldly interests, would, under the circumstances, pursue in his own affairs, will be justified in so doing. Ordinary care and reasonable diligence are what are required of him.

2. An administrator is not bound to sue upon a controverted, doubtful demand where he demands indemnity for costs and expense of the suit from those requesting suit, and it is not given.

3. If a father promise to pay a son for caring for and supporting him, it creates a valid demand in favor of the son.

(Syllabus by the Court.)

Appeal from circuit court, Doddridge county; R. H. Freer, Judge.

Suit by Jennie Harris against John P. Orr and others. Judgment for plaintiff, and Orr appeals. Reversed.

John Bassel, for appellant.

W. S. Stuart, for appellee.

BRANNON, J. John P. Orr was appointed in July, 1891, administrator of W. H. Harris, and this is a suit by Jennie Harris, widow of said Harris, against Orr, to settle his accounts as administrator, and to charge him with assets which, by neglect, he had not collected; among them, with certain money found on the person of Harris after death, and which went into the hands of a son, A. B. Harris, and his wife, and was converted to their own use by them and another son, W. B. Harris. The commissioner and the court's decree charged this money, as well as some other, to Orr, and he appeals.

A demurrer to an amended bill was over ruled, and of this Orr complains. The point made to sustain this demurrer is that the bill only charges "that the administrator has refused to collect, and to institute proceedings for the purpose of collecting and getting possession of, the personal estate of said W. H. Harris." It is said this is vague, and that the bill does not charge that Orr failed to collect solvent debts, or that debts which were collectible had been lost by want of diligence; but this bill does do this. It specifies certain debts on certain persons, and alleges that this money was found on the body of the dead man, and taken possession of by A. B. Harris and wife, and that they and another son W. B. Harris, entered into a conspiracy for the purpose of fraudulently concealing and converting it to their sole use, with intent to cheat the widow out of her share; and that the administrator knew of this conspiracy, and acquiesced in it, and that, though requested by distributees to sue A. B. Harris and W. B. Harris for the money, he failed and refused to do so, and that the demand was solvent when the administrator qualified but had been lost by reason of subsequent insolvency. I think the bill good.

Next, as to the merits. The proposition of the plaintiff is to make Orr pay out of his own pocket money which he never received, —the money on the person of the deceased at his death. To do so requires quite a strong showing. We must find him guilty of gross neglect in not suing for it. Let us see what degree of diligence the law exacts of personal representatives. "Executors pursuing such a course in the management of the testator's assets as a judicious man, looking alone tohis worldly interests, would, under the circumstances, pursue in his own worldly affairs, will be justified in so doing." Kee's Ex'r v. Kee's Creditor, 2 Grat. 117. Such is the general rule. Rea v. Hampton (N. C.) 9 Am. St. Rep. 21, note (s. c. 7 S. E. 649). Ordinary care and judgment, not the highest, are required of him. Moore v. Eure (N. C.) 7 S. E. 471. "Acting in good faith, within the requirements of law, executors and administrators will be treated by the court with liberality and tenderness. They will not be held responsible for losses in the absence of willful misconduct or fraud, especially when acting under advice of counsel. The executor will not, in such cases, be held responsible for mere error of judgment. And where he has acted with what men of sense and experience would deem reasonable discretion in their own affairs, his acts and omissions in good faith will not render him liable for losses arising in consequence, especially during a period of doubt and difficulty. He is not to be held liable as an insurer of the estate." 2 Woerner, Adm'n, § 336. W. H. Harris was an old man of 76 years when he died, April 16, 1891. Three years before, he married a young girl of 18 years, who shortly left him, and returned to her home. Harris was paralyzed, and was taken to the home of his son A. B. Harris, where he lay for about a year, utterly helpless, a large man of over 200 pounds weight, needing the greatest constant attention, often lifted from his bed 10 times a night; and was watched, supported, and cared for by A. B. Harris and his wife, and another son, W. B. Harris, a single man, who had his home at the house of his brother, A. B. Harris. When the old man died, a belt containing $600 in gold and $100 currency was taken from his person, and handed by the person who took it from his person to Mrs. A. B. Harris by direction of her husband. There is evidence tending to show that this money was put in a chest, and in a few days was stolen, —at least disappeared, —but does not seem to be further accounted for. It is claimed that the two brothers, A. B. and W. B. Harris, got and converted this money to their own use, and it is for negligence in not suing them as administrator and collecting this money that Orr is charged with the whole sum and interest. Do the facts charge him under the above principles of law? Was this alleged demand in favor of Harris' estate of such character as called on Orr to sue, or was it so doubtful as will excuse him from suing, either because of doubt of recovery of judgment or from insolvency of the parties? Schouler, Ex'rs, § 274, states the law to be that: "The duty to pursue or collect depends largely upon the sperate or desperate character of the claim itself; as to whether, for instance, the title of the deceased to such a corporeal thing or muniment can be clearly established against the adverse possessor or the reverse; or again, whether such a claim or debt is probably collectible or not, consid ering the debtor's own solvency. A representative is not chargeable for assets without reference to the fact whether they were good, doubtful, or desperate when he assumed the trust, nor in any case aside from the question of delinquency or culpable neglect on his part in realizing their value, or procuring them according to the means at his disposal. No executor or administrator is bound to sue on a worthless debt, but ordinary care and diligence is the true criterion of his duty." Now, that this money disappeared is certain. If it did not come to the hands of the two sons, they would not be liable. If they did not get it, whom would Orr sue? The mere fact that it was taken from the dead man, and handed to Harris and wife, would not, if stolen by others, create a liability on them. If Orr sued, he ran a risk of the evidence in this record to show that it was stolen. But suppose the money was not stolen, but went to the hands...