In re Brown's Estate

• Decision Date: 30 September 1941
• Docket Number: 9213.
• Citation: 16 S.E.2d 801,123 W.Va. 504
• Parties: In re BROWN'S ESTATE.
• Court: West Virginia Supreme Court

16 S.E.2d 801

123 W.Va. 504

In re BROWN'S ESTATE.

No. 9213.

Supreme court of Appeals of West Virginia.

September 30, 1941

H G. Shores, of Keyser, and L. V. Thompson, of Romney, for plaintiff in error.

E A. See, of Keyser, for defendant in error.

FOX Judge.

John E Brown died intestate and his estate was committed to the Sheriff of Hampshire County as administrator, and, under the statute, referred to a commissioner of accounts for an ascertainment of debts and a settlement of the accounts of the administrator. Ida M. Shillinburg filed a claim against the estate of $416.47 for personal services rendered the decedent, and for money expended in his behalf and Victoria Bayse, a sister of the decedent, filed a like claim amounting to $894.59. Each of these claimants contested the claim of the other. Depositions were taken before the commissioner, and on a final hearing of the matter there were findings against the estate in favor of Shillinburg for $290.46 and Bayse for $149.70. In the hearing before the commissioner there was filed by Victoria Bayse a copy of a deed from John E. Brown to Vick Basey, who, the trial court found, is the same person as Victoria Bayse, dated March 8, 1934, conveying to the grantee therein a tract of 60 acres of land near Purgitsville, West Virginia, in consideration of $300 cash, and a balance of purchase money $800 to be paid five years from date of deed, and for which a vendor's lien was retained on the face of the conveyance. In the deed the following clause appears:

"It is furthermore agreed that in cases of my death within the five years from this date that my sister, Vick Basey, shall have all my property both personal and real, provided she will pay off a certain note of three hundred dollars which I made to Robert Jones, and shall pay all other debts which I lawfully owe at my death, at which time she shall have the residue of all my property."

The commissioner of accounts noted the filing of this deed in evidence, but declined to construe the provisions thereof. He refused to allow Bayse certain claims connected with said land, accruing subsequent to the conveyance aforesaid, and found that of the amount allowed Bayse, $75.75 was funeral expenses for the decedent, given priority by statute, but indicated that it might be one of the undertakings of Bayse under the clause of the deed quoted above.

The matter went to the county court on the report of the commissioner, and on exceptions thereto filed by each of the claimants. The county court substantially reduced the Shillinburg claim, items of $90 and $5 going to make the total allowed by the commissioner being disallowed. The exceptions as to the allowance to Bayse were overruled, but on her exceptions she was allowed an item of $300 paid to Robert Jones, and was given first priority on the funeral bill paid by her, and next priority for an item of taxes paid, and the $300 item was fixed as a third lien on the estate, "if there be any estate, but the court holds that, the real estate mentioned and described in the evidence is owned by Victoria Bayse at the time of the death of John E. Brown." From this action of the county court an appeal was prosecuted to the circuit court.

Upon the hearing in the circuit court it was adjudged and decreed that Ida M. Shillinburg was entitled to the full amount allowed her by the commissioner of accounts. The claim of Victoria Bayse was disposed of as follows:

"After mature consideration of all of the matters and issues involved herein, the Court is of the opinion, and does hereby adjudge, order and decree that Victoria Basye is indebted to the estate of John E. Brown in the amount of $800.00 with a legal interest thereon from March 8, 1939, the due date of said obligation as set out in the deed from John E. Brown to Victoria Basye, and filed by the said Victoria Basye as a part of her testimony in which said deed a vendor's lien was specifically reserved to secure said indebtedness, and is now adjudged to be a lien against said real estate, in said deed her name being spelled Vick Basey, and at other times Victoria Bayse; Victoria Basye, Victoria Bayse and Vick Basey being one and the same person.

"The Court is of the opinion that the fourth paragraph of said deed in which John E. Brown attempted to give his personal property to Victoria Basye if he should die within five years and she would pay all of his bills is invalid as an attempted testamentary disposition of his personal property but that said paragraph of said deed does not effect the validity of the deed transferring approximately 50 acres of real estate from John E. Brown to Victoria Basye.

"The Court is of the opinion to allows as a cr edit on said $800.00, and interest, owing by said Victoria Basye to the John E. Brown estate the following items:

"1. Taxes for 1933 on Jno. E. Brown land .............................. $ 3.38

2. One"half of 1934 taxes ............................................. $ 1.49

3. J. H. Markwood & Son for funeral of John E. Brown paid by Victoria

Basye .............................................................. $ 75.75

4. Amount paid Robert Jones on May 14, 1938, of $300.00 less tolls of

John E. Brown estate delivered to Jones for $65.00 or a net amount

of .................................................................. $235.00

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$315.54

"And said amount of $315.54 is allowed as a credit on said $800.00 indebtedness to Victoria Basye to the John E. Brown estate."

To this order Victoria Bayse prosecutes this writ of error.

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