Hart v. Hart
| Decision Date | 14 December 1888 |
| Citation | 8 S.E. 562,31 W.Va. 688 |
| Parties | HART v. HART et al. |
| Court | West Virginia Supreme Court |
Submitted June 18, 1888.
Syllabus by the Court.
S. H owning a small personal estate, and seized in fee of a parcel of land charged with a lien in favor of his vendors for $525 having conveyed the same in trust to S. A. G., trustee, and afterwards, by a second deed, conveyed the same in trust to J. W., trustee, to secure the several debts therein named died intestate, leaving surviving him his widow, C. H., and four children. For two years before, and at the time of the death of S. H., a partnership in a threshing-machine had existed between him and his brother J. F. H., and the social assets of the partnership consisted of the machine and the earnings of the partnership during its continuance. Said J F. H. and C. H., the widow of S. H., became administrator and administratrix of his estate, the greater part of which passed into the hands of, and was administered by, J. F. H., and the residue passed into and remains in the hands of the administratrix. Failing to sell to others the half interest of S. H. in said machine, it was taken by J. F. H., the surviving partner, at the price of $110, the highest bid offered for it. The trustee, S. A. G., having advertised the land for sale according to the first deed of trust, the widow, C. H., filed her bill against him and the beneficiaries under said deed, the said infant children, heirs of S. H., and the said J. F. H., praying for a settlement of his administration accounts, and of the accounts of said partnership; that all debts and liabilities against the estate of said S. H. might be ascertained, and his personal estate applied to the satisfaction thereof; and that until this could be done, that said trustee might be enjoined from selling said lands; but neither the trustee, J. W., nor the vendors of S. H., were made parties to the bill, nor was any guardian ad litem appointed for or answer filed by said infant defendants. Held: (1) That the trustee, J. W., as well as the vendors of S. H., deceased, were necessary parties to the suit. (2) That it was error to decree a sale of said infants' lands with out an answer filed for them by their guardian ad litem. (3) That the social assets of a partnership are first liable for the payment of all partnership debts, including the debts due by the partnership to its several partners. (4) That the proceeds of the sale of the half interest of S. H. in said machine purchased by J. F. H., the surviving partner, at the price of $110, were social assets in his hands, and, as such, they were first liable to pay the said S. H.'s half of the partnership debts, including his half of the partnership debt due to said surviving partner, and that, so far as the same was necessary for that purpose, it should be so applied in the settlement of the accounts between the partners; and that only the residue thereof, if any, would be assets belonging to the estate of S. H., applicable to the payment of his individual debts. (5) That, in the settlement of the administration accounts of J. F. H., he ought not to be charged with any of the assets of the estate of his intestate which were received and retained by said administratrix, and which were never received or administered by him.
It was error for the circuit court to decree a sale of the lands of the intestate for the payment of his debts until the administration accounts of all his personal representatives has been settled, and the amount and priorities of all debts and liabilities against his estate has been ascertained and decreed for, and until it has been ascertained what amount, if any, of his personal estate remains in the hands of his personal representatives applicable to the payment of his debt.
It is error to decree the sale of the lands of a decedent for the payment of his debts without giving to his heirs a reasonable time within which they may pay said debts, and thus avoid a sale of their lands.
A decree in a suit brought to sell the lands of a decedent for the payment of his debts, which ascertains and declares the amounts and priorities of all debts and liabilities, and ascertains the amount of his personal estate remaining in the hands of his personal representatives applicable to the payment of said debts, but fails to make any application of the assets in the hands of his personal representatives, or fails to decree to his several creditors by name the sums ascertained to be due to them, respectively, and to fix the order of priority in which they are severally entitled to be paid, is erroneous, and will for that cause alone be reversed.
Appeal from circuit court, Pleasants county.
Action to enjoin the enforcement of a trust deed made to S. A. Gallaher, trustee, to secure a debt due Gallaher & Son. A decree was rendered in favor of defendants, and Catherine Hart and the administrator, J. F. Hart, appeal.
R. Patterson and A. M. Campbell, for appellants.
J. A. Gallaher, for appellees.
Salathiel Hart died intestate on the 26th of October, 1883, leaving surviving him four infant children, viz., Mary Ellen, David Thomas, and Virginia Hart, and his widow, Catherine Hart, and she and her husband's brother, John F. Hart, were appointed and duly qualified as his administrator and administratrix; the latter of whom took but little part in the administration of the estate, alleged to be of the value of $453, including the undivided interest in a threshing-machine, which said John F. Hart and decedent for two years before and at the time of his death owned and used for profit, no settlement of which partnership transactions had ever been made. The administrator, J. F. Hart, sold all the personal property which came into his possession, except the interest of decedent in said machine, and the other partnership assets, and one-half interest in a jack; both of which were offered for sale, but, deeming the price offered too low, they were not sold, and the machine was retained and used by the surviving partner, and the jack was left with and continued to remain in the custody of said administratrix, who also has received other small amounts of the personal estate for which she has never accounted. The highest bid offered for the decedent's interest in the machine was $110, made by John F Hart himself, and the appraised value of the aforesaid jack was $50. The proceeds of the sale of the personal estate of decedent made by said administrator was $243.97, and he received from other sources the further sum of $5, and no more. On the 25th July, 1882, the decedent confessed a judgment in favor of Gallaher & Son for $280.82, with interest from that date until paid, and $1.75 costs. On the 3d of April, 1883, decedent and his wife, said Catherine Hart, by deed of that date, conveyed to Silas A. Gallaher, as trustee, so much of a certain boundary of land therein particularly described as "they had not already conveyed to other parties by deed," in trust to secure said Gallaher & Son the payment of a cer tain judgment obtained by them against Salathiel Hart for the sum of $280.82, with interest from the 25th of July, 1882, and $1.75 costs, with the usual power to sell in accordance with the laws of West Virginia governing trust sales, in case Salathiel Hart failed to satisfy the same on or before the 1st of April, 1884. This deed was duly recorded, but in recording the same the amount of the judgment thereby secured was stated to be $180.82, with interest and costs as aforesaid. On the 12th October, 1883, Salathiel Hart and his wife, Catherine Hart, executed a second deed of trust upon the same land, describing the interest conveyed in the same terms to John Watson, trustee, to secure to said Gallaher & Son the further sum of $82.55, with interest from the 12th October, 1883, with a similar power to sell in case the debt was not paid on or before the 1st of April, 1884. Both of these deeds of trust were recorded soon after respective dates, and during the life-time of Salathiel Hart. The trustee, Silas A. Gallaher, advertised the land conveyed to him in trust by the deed of April 3, 1883, to be sold on the 20th November, 1885. On the first Monday in December, 1885, the said Catherine Hart filed her bill in the circuit court of Pleasants county against said administrator, John F. Hart, Silas Gallaher, trustee, and Silas Gallaher, surviving partner of the firm of S. Gallaher & Son, setting up substantially the foregoing facts, and alleging that said John F. Hart, as such administrator, was chargeable with all of her said husband's personal estate, including the values of said jack, appraised at $50, and said half interest in the machine, appraised at $200, amounting in all to $453.50; and also with other large sums of money arising out of said partnership transaction remaining in his hands, which moneys were more than sufficient to pay all of her husband's debts, including all that was justly due upon the debts secured by said deeds of trust. She further alleged that the trust deed of $280.82 was in fact only $180.82, with said interest and costs, and that when the deed was recorded the record thereof showed that it was only $180.82, which had been since changed to $280.82, but she does not pretend to dispute the fact that the judgment confessed by her husband to S. Gallaher & Son, recited in the deed of trust, was in fact for $280.82. She further alleges that the deed of trust dated October 12, 1883, to secure the debt of $82.55, was obtained without consideration by said Gallaher & Son, when her husband was too feeble to resist their importunities, and is therefore void. She subsequently filed an amended and supplemental bill against the same defendants, and also against S....
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