In Re Estate Of John W. Groves

• Decision Date: 28 June 1938
• Docket Number: (No. 8634)
• Citation: 120 W.Va. 373
• Court: West Virginia Supreme Court
• Parties: In Re Estate of John W. Groves, Admr.

120 W.Va. 373

In Re Estate of John W. Groves, Admr.

(No. 8634)

Supreme Court of Appeals of West Virginia.

Submitted May 10, 1938.

Decided.

June 28, 1938.

1. Descent and Distribution

a gift made by a parent to his child, calculated to advance the latter in life, is prima facie an advancement.

2. Wills

Where a parent executes a will by which he bequeaths to each of his three daughters the sum of $2,000.00; and later makes to each of them a gift of that sum; and still later, and a short time before his death, states his intention to give to each of his daughters the sum of $2,000.00, the payments so made will not be treated as an ademption of the bequests made in the will, and the daughters will take thereunder.

3. Wills

When; a. testator makes a devise and bequest to his natural son, naming him in the will as his son; and in the same will bequeaths a specific sum of money to each of his grandchildren; the children of the natural son are included in such bequest.

4. Executors and Administrators

Where the administrator of an estate, without the approval of a court having authority to direct investments, uses the funds of the estate in his hands for the purchase, in his own name, of the bonds of a real estate enterprise, such purchase will, in the absence of the approval thereof by the persons entitled to the fund so used, be treated as the personal investment of the administrator individually, and he will be held responsible to the estate for the amount thereof, with legal interest from date of its use.

Kenna, Judge, absent.

Error from Circuit Court, Nicholas County.

Proceeding involving the settlement of the estate of Washington Groves, deceased, and the accounts of John W. Groves, his administrator. To review a judgment of the Circuit Court approving the action of the CountyCourt with the exception of an increase in the allowance to attorney for the administrator, Rufus Groves and others bring error.

Affirmed in part; reversed in part; remanded.

W. G. Brown and John T. Simms, for the plaintiffs in error.

Mohan, Bacon & White, for defendant in error. Fox, Judge:

This is a writ of error to an order of the circuit court of Nicholas County, entered in a statutory proceeding involving the settlement of the estate of Washington Groves, deceased, and the accounts of John W. Groves, his administrator. This settlement was first laid before a commissioner of accounts who filed a report which was confirmed by the county court, and a writ of error prosecuted thereto to the circuit court. The order of the county court was confirmed with minor modification, from which action this writ is prosecuted.

Washing-ton Groves died on March 16, 1914, and shortly thereafter, John W. Groves qualified as administrator of his personal estate, the appraised value of which was $31,232.58, including $1,914.71, represented as doubtful of collection. He left surviving him two legitimate sons, John W. Groves and Rufus Groves, and three daughters, Margaret McClung, Nannie J. Monroe and Ruth Dorsey. Another son, Fielding Groves, left the county of his nativity, has not been heard from, and, in this proceeding, is presumed to be dead. He also left surviving him a natural son, Alfred Groves, who about eight months after his father's death and after the qualification of John W. Groves as administrator, instituted a suit in equity in the circuit court of Nicholas County, process in which was made returnable to November Rules, 1914, to establish an alleged will of Washington Groves, under which, as alleged in his bill and afterwards decreed by the court, the said Alfred Groves shared in the estate of Washington Groves equally with his legitimate living children named above, under the residuary clause of the will. The suit to establish the will was not decided until May 20, 1930. This will, as established by the court, was executed about 1907 or 1908 and bequeathed and devised the property of the testator as follows: (1) After payment of debts and funeral expenses, he bequeathed to each of his three daughters the sum of $2,000.00; (2) to each of his grandchildren the sum of $100.00; (3) the residue of his estate, real and personal, was devised and bequeathed in equal amounts to his three sons, John W. Groves, Rufus Groves and Alfred Groves, and to his three daughters, Margaret McClung, Nannie J. Monroe and Ruth Dorsey.

In the year 1887 Washington Groves, for a nominal consideration, conveyed to John W. Groves a tract of 433 acres of land, and to Rufus Groves, 450 acres, out of his landed estate in Nicholas County; some time later, the exact time being uncertain, he gave to each of his three daughters the sum of $1,000.00. Some eighteen years thereafter, land values in that section having greatly increased, John W. Groves and Rufus Groves each sold the lands so conveyed to them, or portions thereof, from which they each realized approximately $7,000.00. In 1903 Washington Groves made sale of practically all of his land from which he realized $16,-236.00. In 1911, some three or four years after the execution of the will by which he bequeathed to each of his daughters $2,000.00, he made to each of them a gift of $2,000.00. About the time he gave this money to his daughters, he stated, according to the testimony of John W. Groves, that "he was going to give the girls $2,000.00 to make them equal or partly equal with what he gave Rufus and me"; and Alfred Groves, when asked about these payments, says that a short time before his father's death, he told him "he was going to give them some" and "he was going to give the girls $2,000.00 apiece"; and "he said I am going to give the girls $2,000.00." The date of the statement to John W. Groves is definite, but that of Alfred Groves is not, except that he says it was "not so very long" before his father's death.

John W. Groves, as administrator, proceeded to administer his father's estate and distribute the same among his legitimate heirs. On August 3, 1914, he paid to Rufus Groves the sum of $775.37 and on September 8, 1914, the further sum of $4,000.00; on or about September 11, 1914, he paid to Nannie J. Monroe $2,853.13; on November 6, 1914, he paid to Margaret McClung $3,-

000. 00; and to Ruth Dorsey, $3,000.00, and to Nannie J. Monroe, $1,000.00. At some time later he withdrew from the estate $3,500..00, as a part of his share therein. Some small bills were paid, taxes met from year to year, including a settlement with the State Tax Commissioner, but nothing of note was done with respect to the estate until late in the year 1923 or early in the year 1924. At that time the undistributed part of the estate in the hands of the administrator was approximaely $7,000.00, deposited in banks in Nicholas County, and earning interest at the rate of four per cent annually. On December

1, 1923, John W. Groves withdrew this fund from the banks, and in his own name purchased bonds of the Washington Heights Land Company. The total face value of these bonds so purchased by him was $23,000.00, so that he used $16,000.00 of his own funds in addition to those of the Washington Groves estate. The record discloses little as to the real value of these bonds. The most that is shown appears from the affidavit of an auditor of the land company, from which it appears that the total investment of the company in land was $75,000.00; road construction, $35,128.93; engineering, $5,525.00; presumably a water tank, $15,723.06; lights, $10,932.73; house, $15,367.97; and road building equipment, $17,-753.62, a total investment of $175,431.31, on which there were outstanding first mortgage bonds to the amount of $175,600.00, a part of which were purchased by John W. Groves. Within two years after their purchase, the Washington Heights Land Company was liquidated, its property sold to the Charleston Heights Land Company under an arrangement of some character by which the holders of the bonds of the liquidated company acquired a corresponding amount of stock in the new company upon the payment of an assessment of ten per cent of the face value of the bonds. John W. Groves paid this assessment and now holds in his own name 230 shares of the stock of the Charleston Heights Land Company of the par value of $23,000.00.

The commissioner of accounts held (1) that the use by the administrator of the estate's funds, in the amount of $7,000.00, in the purchase in his own name of bonds of the Washington Heights Land Company was not warranted in law and that he should be held accountable therefor; (2) that the payment by Washington Groves to each of his daughters of the sum of $2,000.00 in the year 1911 operated as payment and satisfaction of the bequests to them of that amount in the will executed by him prior to that date; (3) that the provisions made in the will for his grandchildren did not include the children of his natural son, Alfred Groves; (4) that the administrator should be charged with interest on funds of the estate actually collected by him to December 1, 1923, which he found to be $3,926.87, but that he should not be charged with interest on the estate from that date to May 20, 1930, when the final decree in the suit to establish the will was entered; (5) that the amount of the estate for which the administrator was accountable as of the year 1914, was $28,863.29, and that after the payment of expense of administration, and the bequests to the grandchildren, excluding the five children of Alfred Groves, the net amount of the estate distributable under the residuary clause of the will was $24,211.86, which, divided among those taking under that clause, amounted to $4,035.31 for each of them, to which was added $354.88 to each of said devisees' on account of earnings of the estate, less expenses of administration, subsequent to 1914, and to January 1, 1935, the date to which all calculations in said report are made; (6) that payments had been made by the administrator on account of their respective interests in the estate as follows: ...