Heirs v. Kunst
| Decision Date | 23 March 1909 |
| Citation | 64 S.E. 967,65 W. Va. 384 |
| Parties | BUTCHER'S HEIRS et al. v. KUNST et al. |
| Court | West Virginia Supreme Court |
Rehearing Denied June 9, 1909.
Where an appeal from a judgment or order of a county court appointing, or refusing to appoint, an administrator has been allowed by, and docketed in, a circuit court, and the person appealing has right of appeal, the order of dismissal thereof by the circuit court, as improvi-dently awarded, will be treated as a final judgment, from which a writ of error will lie to this court.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 528-547; Dec. Dig. § 84.*]
A distributee of the estate of one dying intestate in this state, and who would, if a resident of this state, be entitled to precedence in administration, and as the law was prior to 1903 would, notwithstanding such nonresidence, have been entitled to administer on such estate, is now by amendment of chapter 13, p. 83, Acts 1903 (section 3258, Code 1906), wholly disqualified to act as such administrator.
[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 65: Dec. Dig. § 18.*]
But though such nonresident distributee be disqualified by nonresidence to act as administrator, nevertheless his interest as distributee entitles him to be heard, by protest, objection, and advice in the appointment of a proper and competent person, with right of appeal to the circuit court, and writ of error to this court.where there has been any abuse of the discretion of the court below in such appointment.
[Ed.. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 102; Dec. Dig. § 20.*]
On the death of such nonresident distributee pending a writ of error brought by him to this court, though such death be suggested on the record of this court, and order be made reviving the cause in the name of his next of kin or next friend by whom the writ of error is prosecuted, the case may be heard and disposed of here on its merits upon the writ of error as originally awarded, without reference to such death, as provided by section 3900, Code 1906.
[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. §§ 1846-1850; Dec. Dig. § 333.*]
By authority of section 3258, Code 1906, if no distributee of an estate apply for administration within 30 days from the death of the intestate, the county court may grant administration to a creditor, or to any other person, without waiting for an adjudication as to the sanity or insanity of a resident or nonresident distributee thereof, the statute imposing no such limitations on the appointing authority.
[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 43-59; Dec. Dig. § 17.*]
While the general rule is that there cannot be two valid grants of administration on the same estate at the same time, within the same state jurisdiction, and the second is a nullity while the first continues, yet such rule is inapplicable to the case of a temporary commitment of such estate to the sheriff as curator thereof, pending the determination of the right of administration by the county court.
[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 128, 129; Dec. Dig. § 23.*]
While the county court may rightfully require evidence of a creditor's claim as a condition precedent to his appointment as administrator of an estate, yet, as the statute authorizes the appointment of any other person, if such appointee be not in fact a creditor, if he be otherwise competent to act, his appointment will not be invalid.
[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. §§ 43-59; Dec. Dig. § 17.*]
An order of the county court appointing an administrator, whether distributee, creditor, or other person, will not be set aside on writ of error to this court, unless it plainly appears that there was abuse of the discretion of the county court in making such appointment.
[Ed. Note.—For other cases, see Executors and Administrators, Cent. Dig. § 102; Dec. Dig. § 20.*]
The rule in this state is that a judgment pronounced by a judge disqualified by personal interest to give judgment is not void, but voidable only, as being a decree not according to law, and to be set aside only when brought under review, and objection taken at the proper time.
[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 237-239; Dec. Dig. § 9.*]
Quaere: Where two of three commissioners of a county court are interested so as to be disqualified by reason thereof to give judgment in the matter of appointment of an administrator, there being no provision of law for calling in another commissioner, and no other tribunal with jurisdiction to make such appointment, would not they, ex necessitate, have jurisdiction to sit in judgment?
(Syllabus by the Court.)
Error from Circuit Court, Taylor County.
Contest to determine the right and priority to administration of the estate of Adolphus Armstrong, deceased, between Louisa Butcher and others and G. H. A. Kunst and others. From the final order of the county court appointing Kunst administrator of the estate, Louisa Butcher and such others appealed to the Circuit court, which court dismissed the appeal, and Louisa Butcher and such others bring error. On death of said Louisa Butcher pending hearing on writ of error, said cause was revived and proceeded in by George Woofter and others as hei heirs and next of kin. Affirmed.
Dent & Dent, B. F. Bailey, and C. P. Guard, for plaintiffs in error.
John L. Hechmer, for defendants in error.
MILLER, P. This case had its origin in a contest over the right and priority of administration of the estate of Adolphus Armstrong, deceased, begun in March, 1907, in the county court of Taylor county, and continued on appeal of Louisa Butcher by George Woofter and others, her next of kin, to the circuit court of said county, from the final order of the said county court appointing, on motion of creditors and others, G. H. A. Kunst, administrator of said estate. The case is here upon a writ of error to the judgment of the said circuit court dismissing said appeal.
On June 13, 1908, since the case was docketed here, the death of Louisa Butcher, pending this writ of error, being suggested on motion of said Woofter and others, it was ordered that the case be revived and proceeded in in their names in place of said Louisa Butcher. On final hearing, September 4, 1908, said Kunst moved the court as follows: First, to require plaintiffs in error to mature the case as to L. E. Matz, not served with process; second, to require plaintiffs in error to amend their petition so as to bring in as defendants Eugene Sommerville and L. E. Matz, the latter in his representative capacity; third, to set aside the order of revival herein, and, in support thereof, exhibited a certified copy of the will of said Louisa Butcher, and of the order of the county court of said Taylor county appointing W. B. Lynch executor; fourth, to dismiss the writ of error and supersedeas, on the ground that the judgment appealed from, dismissing the appeal as improvidently awarded, is not a final judgment on the principles of the cause, from which an appeal lies to this court. So far as the record shows, Matz has no individual interest to subserve, wherefore not a necessary party. He appeared by petition in the county court as foreign guardian of the said Louisa Butcher, appointed by the probate court of Monroe county, Ohio, which court also adjudged her an imbecile, and incapable of taking care of and preserving her property, and also joined in the motion of creditors to appoint said Kunst administrator. The death of Louisa Butcher annulled the authority of the said Matz as a representative of deceased, and therefore he is no longer a necessary party. In the county court Eugene Sommerville appeared by petition, claiming right of administration by virtue of a power of attorney and nomination therein of said Louisa Butcher, and also filed a protest in writing against the appointment of any other person. He did not appeal from the order appointing said Kunst, and has not appeared to cross-assign errors in this court. The question of Sommerville's right of administration and the questions presented by the other motions are all involved in the merits of the controversy presented upon this writ of error, if the judgment below was final, so as to give us jurisdiction, and need not be separately considered.
The order of the circuit court was that the appeal be dismissed as improvidently awarded. It is argued on behalf of Kunst that this order was, in effect, only a refusal of the appeal, and not an adjudication of the rights of the parties, and that, no appeal having been applied for or allowed by a judge of this court, as provided by section 3634, Code 1906, and there being no final adjudication by the circuit court, this court is without jurisdiction of the case, and the writ of error should be dismissed. We do not think this position well founded. An appeal was allowed by the circuit court; and, if appellant Louisa Butcher had right of appeal from a judgment denying her right and priority of administration, or right to nominate said Sommerville, or right of protest against the appointment of said Kunst, she had right of appeal to the circuit court, by...
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