HOKE v. Petitioner

• Decision Date: 30 March 1878
• Citation: 12 W.Va. 427
• Court: West Virginia Supreme Court
• Parties: HOKE, Ex'or, & c., v. HOKE et al.

12 W.Va. 427

HOKE, Ex'or, & c.,

v.HOKE et al.

Supreme Court of Appeals of West Virginia.

March 30, 1878

1. On the 28th day of August, 1878, Christopher Hoke made and published his last will and testament in writing, in due form. The fifth clause of said will is in these words, viz:" Item V. I will and bequeath unto my two sons, Christopher Hoke and Anderson R. Hoke, jointly, my mill-tract of land, estimated to contain about four hundred acres, be the same more or less; the John Peters tract, estimated to contain two hundred and forty acres, be the same more or less, lying and being partly in Monroe and partly in Greenbrier counties, and adjoins the above named mill-tract, James M. Nickell and Wm. T. Mann; and my Beem tract of land, lying and being in the county of Greenbrier, adjoining the lands of Robert Morehead, Wm. T. Mann and others, and is said to contain eightyfour acres, be the same more or less, with all and singular the appurtenances belonging to the said tracts of land (mills, grist and saw, included) to them and their heirs forever. And I further direct, that the said Christopher Hoke and Anderson R. Hoke, pay to my son John M. Hoke; the sum of $1,000 00, to be paid in five annual equal installments; and that they also pay unto my son, Henry Hoke, the sum of $300.00, to be paid him in two annual equal installments.

The tenth clause of said will is in the following words, viz:" Item X. It is my will and desire, that after my death, all my property of every kind, not hereinbefore mentioned or disposed of, shall be sold by my executors, and the proceeds thereof, together with any debts or money on hand, applied to the payment of my debts; and the residue of said pro- ceeds, if any after having been applied as above, be divided equally between my four sons, viz: Henry Hoke, Chiistopher Hoke, Anderson R. Hoke and John M. Hoke." (See the will in opinion of the Court.)

The devisee, Anderson R. Hoke, died before the testator, without having been married and leaving no issue. The testator died in May, 1863.

He lived and died in Monroe county, in Virginia, but now in the State of West Virginia.

The will was duly probated in said Monroe county. Held: That the devise in said will to Anderson R. Hoke did not lapse; but the whole property, devised in and by said fifth clause of said will, passed at the death of the testator to the surviving devisee Christopher Hoke, per force of the common law, notwithstanding the provisions of the 18th and 19th sections of chapter 116, of the Code of Virginia 1860, and also the provisions of the 13th and 14th sections chapter 122 of same Code, and notwithstanding said Henry Hoke and John M. Hoke survived the testator, and also sisters of said Anderson R. Hoke, deceased, and daughters of the testator survived the testator.

2. The said 13th section of chapter 122 modifies the common law

so, that if a devise is made to two persons jointly, and one of the devisees or legatees dies before the testator, leaving issue who survive the testator, such issue of the pre-deceased devisee or legatee will take the estate, as that devisee or legatee would have done, if he had survived the testator, unless a different disposition thereof be made.

3. Although, when an executor sells personal estate of his testa-

tor, at an executorial sale, and takes bonds with security therefor, it is generally a conversion of the assets of the estate so sold, and he becomes liable as administrator to account for the amount of sales, and may be charged therewith, in settlement of his account, and the bonds become his individual property, still a court of equity may, where it is shown that the executor has acted in good faith and prudence, and has exercised due diligence in his efforts to collect the bonds, and has failed to do so for causes beyond his control, and a long time has elapsed, and it is doubtful whether the bonds can be made available, or, if at all, within a reasonable time, relieve the executor in the settlement of his executorial account before the court from responsibility as to such debts, by crediting him in his account, with the amount thereof, and treating and controlling said debts, in whatever shape they may be, as unadministered assets of the testator, under the control and direction of the court.

The ordinary commission allowed an executor is five per cent on his receipts; but under peculiar circumstances he may be

allowed more. He may be allowed for fees of counsel, when they appear to be reasonable, and it was proper to employ counsel, if he has paid such fees, and, if he has not paid them, the court may in its discretion, allow them to the counsel, and direct them to be paid to such attorneys.

An appeal, granted upon the petition of Christopher Hoke, Jr., in his own right, and as executor of Christopher Hoke, Sr., to a decree of the circuit court of Greenbrier county, rendered on the 21st day of November, 1874, in a cause in chancery then in said court pending, wherein said Christopher Hoke, Jr., as such executor, and in his own right, was plaintiff, and John M. Hoke and others, heirs and devisees of Christopher Hoke, Sr., deceased, were defendants.

Hon. Homer A. Holt, judge of the eighth judicial circuit, rendered the decree complained of.

The facts sufficiently appear in the opinion of the Court.

Samuel Price and J. W. Davis, for appellants, referred to the following authorities:

1 Amb. 1367; 1 Roper on Legacies 121, 483; 19 Gratt. 787, 788; Morley v. Bird, 3 Ves. Jr. 628; Cox v. Quantoclc, 1 Ch. Cas. 238; Shore v. Billingsby, 1 Vern. 482; Welster v. Welster, 2 P. W. 387; 2 P. W. 529; Code Va. ch. 116; 2 Mat. Dig. 38; Cheshire v. Purcell, 11 Gratt. 774; Baird v. Rowan, 1 Mar. 217; Hazlerig v. Hazlerig, 3 Dana 48; Jarman on Wills, 295 (side); Findley v. Findley, 11 Gratt. 434; Robinson v.Allen, 11 Gratt. 788; 2 Danl. Ch. Pr. 1068, 1089, 1091, 1150; 3 Wend. 573; 1 John. Ch. 140; 2 Mar. 236; 1 Tuck. 2d book, 10 ch.p. 168.

A.C.Snyder, for appellees:

The appellant's first and principal assignment of error involves the proper construction of Item V, of the will of C. Hoke, deceased, which is in these words:

"I will and bequeath unto my two sons, Christopher Hoke and Anderson R. Hoke, jointly, my mill-tract of land, &c."

Anderson R. Hoke died unmarried, and without issue, in the life-time of the testator. Upon this presentation, the circuit court held that C. Hoke did not take the interest devised to Anderson. The views of the judge of that court will be found in the following abstract from his opinion in this cause which are here adopted as a part of this brief:

"Christopher Hoke, Sr., by this clause of his will, devised the land therein mentioned to his two sons, Christopher and Anderson R., jointly, without saying more, thereby making them joint-tenants per formam doni. But this joint-tenancy never became a vested estate, Anderson having died in the life-time of his father, and the question is, did Christopher take the whole? I am of the opinion that he did not, being led thereto by the following considerations:

"Survivorship was an incident of joint-tenancy at common law, and it followed as a consequence of survivorship that if one of the joint devisees died in the testator's life-time, the other took the whole. In time, however, this incident of joint-tenancy came into disfavor, so much so, that the courts were disposed to give effect to the slightest expressions against it, and it came to be said that survivorship had but one good quality, and that was its capability of being destroyed. It was in this spirit that our law-makers approached the subject, sweeping it away with the exception in case of executors and trustees, somewhat like the statute docking entails, directly and indirectly destroying it as an incident, whenever it presented itself in a practical shape; impressing all land, no matter what the tenor, with the capability of being partitioned, of being devised; by the statute of descents, causing it to descend and pass in parcenary to the kindred, in the order named; making it liable to be mortgaged or otherwise incumbered or charged; making it subject to curtesy and to dower, to judgment liens, to attachment liens; and making it assets for the payment of debts and of all lawful demands, and finally chapter 116, (Code of 1860,) which, by its title, professing to prescribe general rules as to the creation and limitation of estates, and their qualities, deals with the subject expressly and by name.

"The 18th section would seem to comprehend within its letter vested estates only, and in this restricted and literal sense to have no direct bearing on the question, except that it causes to cease the reason of the rule; but the 19th section is something more than a mere exception; it embraces the point involved in its letter, if not in its meaning; it is a rule of action, a standing admonition to all grantors, who undertake thereafter to convey estates, to all testators who thereafter conceive the intent, and undertake to put in authentic form a devise of an estate to a person in his own right, that if they intend that the part of the one dying should then belong to the other, they must make such intent manifestly appear from the tenor of the instrument; and that if they make their devisees joint-tenants simply, as at common law, they shall be held to intend that the part of the one dying shall not then belong to the others, except as a matter of convenience in the case of executors and trustees, who are invested with the legal title as a matter of trust. This section therefore, deals with the testator's intent in regard to survivorship, and with the form he must adopt to make that intent appear, both of which, in the nature of things, necessarily precede the vesting of the estate.

"In this case, the testator, with this law before hirm made this devise to his two sons in their own right, using supreme court of appeals

apt words to make manifest his indention that the...