Ireland v. Hibbs., (No. 9351)
| Decision Date | 04 November 1942 |
| Docket Number | (No. 9351) |
| Citation | 125 W.Va. 31 |
| Parties | A. D. Ireland, Exec, etc. v. Arthur Guy Hibbs et al. |
| Court | West Virginia Supreme Court |
"Before the land of a decedent can be ordered sold in a proceeding brought by the personal representative under Code, 44-8-7, it must appear that the proceeds of the personal estate have been first applied to the discharge of the debts of decedent, and that the land is ordered to be sold in satisfaction of the balance of debts remaining in an ascertained aggregate amount." Syllabus, Arbenz v. Arbenz, 114 W. Va. 804, 173 S. E. 881.
It is reversible error to order the sale of real estate without providing the terms and conditions of sale in the decree.
The presumption that services rendered by a daughter in the care and support of her mother are not expected to be paid for, is overcome by clear proof of a distinct understanding on the part of both entered into before the performance of the services that the daughter was to be paid their reasonable worth by the mother.
Appeal from Circuit Court, Wood County.
Proceeding by A. D. Ireland, executor of the will of Lucinda S. Hibbs, against Arthur Guy Hibbs and others, to subject land to payment of indebtedness. From an adverse decree, the named defendant and others appeal.
Affirmed in part; reversed in part.
K. C. Moore and R. E. Bills, for appellants. A. D. Ireland, for appellee.
This proceeding in chancery was brought in the Circuit Court of Wood County by A. D. Ireland, executor of the will of Lucinda S. Hibbs, against Arthur Guy Hibbs and others, being the heirs at law, devisees and creditors of Lucinda S. Hibbs, for the purpose of subjecting two parcels of land located in Wood County and an undivided interest in oil and gas in place located in Ritchie County, of which the decedent died seised and possessed, to the payment of her indebtedness, the personal estate alleged to be insufficient for that purpose. The cause was referred to a commissioner in chancery for the purpose of ascertaining the assets and liabilities of the decedent's estate. Upon the incoming of the commissioner's report, Arthur Guy Hibbs, Nettie Dulin and Mary Craig excepted to that part of the report allowing Beuna Wood the entire amount of her claim for services rendered her mother, Lucinda S. Hibbs, during a lengthy illness from June 26, 1935, to December 31, 1939, the date of the latter's death. The entire amount of the Wood claim, including interest, as of the date upon which the decree was entered, January 21, 1942, was $2,608.00. The trial chancellor overruled the exceptions to the commissioner's report, confirmed the report in its entirety, and, upon ascertaining that the personal estate of the decedent was "wholly insufficient to pay off and discharge the debts due from her", ordered the three interests in land, that is to say, a farm consisting of seventy-two acres upon which the dwelling in which the decedent resided is located, in Wood County, a tract of seventy-four acres and four poles, also in Wood County, and a one-ninth interest in the oil and gas underlying a tract of seventy-two acres in Ritchie County, sold. The decree of sale instructs the special commissioner to give notice of the time, terms and place of sale in a Parkersburg paper as required by statute "in such case made and provided". Accompanied by a recital to the effect that Arthur Guy Hibbs, Nettie Dulin and Mary Craig desire to appeal therefrom, the effect of the decree is suspended for a period of sixty days, during which time, this Court granted the appeal upon the application of the parties named in the decree's recital.
The assignments of error are nine in number, the first five being procedural and stating that the trial chancellor erred by not applying the proceeds of the personal estate to the payment of the indebtedness prior to ordering sale and thereby reaching and fixing a sum certain for which the parties in interest might redeem; that it was error to order the undivided interest located in Ritchie County to be sold pursuant to a notice of sale published in Wood County; that it was error to order a sale without specifying the time that the notice of sale should run; that it was error to order a sale without requiring a notice to be posted at the courthouse in Wood County and at the courthouse in Ritchie County; and that it was error to order a sale without fixing the terms under which the purchase price should be paid. The remaining assignments of error all go to the allowance of the claim of Beuna Wood, and we believe do not require separate consideration. In addition to the specific assignments of error, the appellants contend here for the first time that the Circuit Court of Wood County lacked jurisdiction to entertain this proceeding due to the fact that prior to its institution, the County Court of Wood County had referred the estate of Lucinda S. Hibbs to a commissioner of accounts of that county who had not reported and who, consequently, retained jurisdiction at the time this proceeding was brought. There is no showing in this record of the facts upon which this point is based, and since, in this jurisdiction, it is well settled that the chancery jurisdiction of a circuit court is paramount to that of a county court in matters relating to the settlement of the estate of a deceased person, the question will not be further considered. McComb v. McComb, 121 W. Va. 53, 200 S. E. 49; Travis v. Travis, 116 W. Va. 541, 182 S. E. 285.
Concerning the first five assignments of error listed above, the position taken by the appellee against sustaining them resolves itself finally into a question of practical expediency. He contends that the personal estate has been appraised and correctly valued in the amount of $126.00, and that that amount is less than enough to defray the cost and expenses involved in this proceeding; that although the decree of sale requires no advertisement nor posting in the county of Ritchie, where the undivided oil and gas interest is located, that can, and will, be taken care of before the day of sale is reached; that the same is true of the publication and posting of notice in Wood County, and that the provisions of Code, 55-12-2, will be followed in that regard; and that it is unnecessary in a decree of sale to fix the terms of sale,...
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