Hill, Admr. v. Cronin et al.
| Decision Date | 15 November 1904 |
| Court | West Virginia Supreme Court |
| Parties | Hill, Admr. v. Cronin et al. |
1.Final Decree Chancery Cause.
A decree in chancery cause, such as will support an appeal, is not necessarily the last decree rendered, by which all proceedings in the cause are terminated, and nothing is left open for the future judgment or action of the court; but it is a decree which determines the substantial merits of the controversy, all the requisites of the case, though there may remain a reference to be had, or the adjustment of some incidental or dependent matter. (p. 179).
Syllabus Approved.
Point one in Syllabus of Wood v. Harmison, 41 W. Va. 376, approved and applied. (p. 179).
Appeal Judge Order of Reference.
An order of reference, founded on the expressed opinion of the judge, not followed by the sentence of the law thereon, is not appealable. (p. 182).
Appeal from Circuit Court, Eitchie County. Bill by B. F. Hill, sheriff, against J. B. Cronin and others. Decree for plaintiff, and defendants appeal.
Dismissed.
Duty & Fidler, for appellants.
H. Adams, H. B Woods, and M. L. Barron, for appellee.
The first question which confronts us, is one of jurisdiction. Have we the right to hear and determine the alleged errors of the circuit court, appearing in the record? Is the decree complained of an appealable decree? Code, chapter 135, section 1, gives the right to an appeal for error in a case where the matter in controversy, exclusive of costs, is of greater value or amount than one hundred dollars, wherein there is a final decree or order: or, in any case in chancery, wherein there is a decree or order, adjudicating the principles of the cause.
The courts have given to this language of the statute a certain and definite legal meaning, and, many times, have applied the rules thus established to particular cases. It is suggested that the decree complained of is neither a final decree, nor a decree adjudicating the principles of the cause.
B. F. Hill, sheriff of Bitchie county, and as such, administrator of Andrew Cronin, deceased, filed his bill in equity in the circuit court of that county against J. B. Cronin, A. W. Cronin, Mathias Cronin and John Cronin, defendants, in which he alleges that said Andrew Cronin died intestate, leaving surviving him, Rebecca Cronin, his widow, and the defendants; and other children, his only heirs at law; that said Andrew Cronin was a pensioner of the United States government; that with the proceeds of back pay and pension received by him he bought, for the consideration of $300.00, a tract of fifty acres of land, which was conveyed to him by Jamison and wife, by their deed, bearing date on the 19th day of April, 1886; that on the 29th day of March, 1893, said Andrew Cronin and wife, for the recited consideration of $25.00, and a "life lease reserved on the premises," conveyed said land to his son, said A. W. Cronin; that on the 29th day of November, 1902, said Andrew Cronin, for the consideration of three hundred dollars, bought a tract of fifty-four acres of land of one Cain and wife, which was, by Cronim's direction, conveyed by them to his son, J. B. Cronin; that on the 1st day of October, 1894, said Andrew Cronin, for the consideration of three hundred dollars, bought of said Cain, and took from him a conveyance for another tract of fifty-four and three-fourths acres, which said Andrew Cronin and wife in 1895, conveyed to J. B. Cronin; and that in 1902, the said A. W. Cronin exchanged his said fifty acres with said J. B. Cronin for said two tracts of fifty-four and fifty-four and three-fourths acres, respectively.
Plaintiff, on information and belief, charges that the said A. W. and J. B. Cronin, in consideration of the conveyances to them as above stated, agreed to, and with the said Andrew Cronin, to keep, support and maintain him, and his said wife, Re becca, in a comfortable and proper manner, during the remainder of their natural lives.
It is further alleged in the bill that in the year 1897, after the said conveyances had been made as aforesaid, Andrew Cronin was stricken with paralysis, whereby he was rendered mentally incapable of transacting his ordinary busines affairs during the remainder of his life; that at the time he was so stricken, and became mentally incapable of transacting any business, he had, and possessed, $1,000.00 of pension money, and also horses, cattle, sheep, farming implements and household and kitchen furniture, amounting in value to $800.00; that afterwards his pension was increased by the government to $72.00 per month, which he was entitled to receive up to the time of his death, and which, at the time of his death, in June, 1902, amounted to $3,700.00. It is then charged by plaintiff that said A. W. Cronin and J. B. Cronin, disregarded their said contract with their father, to keep, support and maintain him and their mother, in a comfortable and proper manner; and failed to do so; that said A. W. Cronin and J. B. Cronin took advantage of the mental incapacity of their father, and illegally assumed to act, and did illegally act, as his committee; and as such illegal committee, or committee de son tort, received and took into their possession the whole of said pension money, and other personal property, belonging to their father which they and each of them have, since that time, wholly failed, neglected and refused to pay over, or account for to plaintiff, as administrator as aforesaid.
The plaintiff further charges that, out of the said money and other personal property so obtained by said A. W. Cronin and J. B. Cronin, the said J. B. Cronin has built a dwelling house upon his said land of the value of $1,500.00; that with the said money, said A. W. Cronin has erected a dwelling house on his said land of the value of $1,000.00; that said A. W. Cronin and J. B. Cronin turned over to defendant Mathias Cronin a portion of said money so received by them, with which said Mathias Cronin has built a dwelling house of the value of $1,000.00 on lands belonging to him; and that some of said money may have been turned over to said John Cronin.
The bill further alleges that said A. W. Cronin lived with said Andrew Cronin up to the time of his death, that said J. B. Cronin also lived with his father, almost to the time of his death; that said Andrew Cronin did not dispose of, and could not legally dispose of, said pension money and other personal property by reason of his mental incapacity so to do, and that he was the legal owner thereof at the time of his death; that the said A. W. Cronin and J. B. Cronin illegally, wrongfully and fraudlently converted the whole of said money and other personal property to their own use; that said A. W. Cronin and J. B. Cronin in their own wrong, assuming to act as a committee for said Anelrew Cronin, took charge of said money and other property of said Andrew Cronin; and that there exists, in favor of plaintiff and the estate of Andrew Cronin, deceased, the right to charge said lands with the amount of money so expended in the erection of buildings, and the making of other improvements thereon, to the extent of the money belonging to said Andrew Cronin, used thereon, as aforesaid; and to have the amount of said money so used, declared and decreed a lien on said property.
The bill then prays that, "if necessary, this cause be referred to a master commissioner in chancery of this court to ascertain and report what money and other personal property belonging to the said Andrew Cronin or his estate have been received by the defendants and each of them and how they have disposed of the same; that the plaintiff may have a personal decree against the defendants for the amount so received by them and found to be due the estate of the said decedent; that the same may be decreed to be a charge and lein upon the real estate of the defendants, J. B. Cronin, A. W. Cronin and Mathias Cronin to the extent that the funds belonging to the said decedent or his estate have been used in the erection of dwelling houses and other buildings and making improvements on said real estate, and that the said real estate, or, so much thereof as is necessary, may be sold to satisfy the same; and that plaintiff may have all such other and further relief, both general and special as the nature of the case may require, and the court may see fit to grant."
To the bill, the defendants, J. B. Cronin, A. W. Cronin, Mathias Cronin and John Cronin filed their general demurrer, which was overruled. Whereupon the defendants answered, admitting the allegations of the bill as to said conveyances, but denying that their father was ever mentally incapable of transacting business. They aver that all of the money received by said Andrew Cronin as a pensioner or otherwise, was in fact received by him personally, and was expended in the manner directed by himself; and that, if respondents, or any of them, received any part of said money, they received it direct from their father, Andrew Cronin, with instructions, as to what was to be done with the same, and that it was a gift to them to be used as their own. The defendants, A. W. and J. B. Cronin, deny that they acted as committee de son tort of their father. Respondents aver that said conveyances of real estate and gifts of personal property were made in consideration of the work of defendants for their father and mother and for their maintenance and support, and with the understanding and agreement between the said Andrew Cronin and respondents that whatever personal property should remain at the death of said Andrew Cronin should become and be the property of respondents.
Many depositions were taken and...
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