Jacobs v. Jacobs

• Decision Date: 13 January 1926
• Docket Number: (No. 5398)
• Citation: 100 W.Va. 585
• Court: West Virginia Supreme Court
• Parties: Winnie M. Jacobs, Executrix, etc., v. Florence WardJacobs, Infant et al.

100 W.Va. 585

Winnie M. Jacobs, Executrix, etc.,

v.Florence Ward Jacobs, Infant et al.

(No. 5398)

Supreme Court of Appeals of West Virginia.

Submitted October 28, 1925.

Decided January 13, 1926.

1. Wills Will Held to Create Jointure for Widoiv and to Put Her to Election.

A will which gives to the widow a life estate in the entire real and personal property of the testator, with fee therein contingent upon the death of the daughter without issue before the death of the widow, and which nominates the widow as executrix without bond, with direction to her to sell a sufficient amount of the property, either real or personal, or both, within a reasonable time after testator's death, to discharge all the debts, and to execute to the purchasers proper deeds of conveyances, construed in the light of the circumstances surrounding the testator at the time of the will, creates a jointure for the widow and puts her to election, (p. 587).

(Wills, 40 Cyc. pp. 1392, 1965, 1 966.)

2. Same: Widow Put to Election Between Dower and Provision for Her in Will When Assertion of Dower Woidd Defeat, Even Partially, Any of Will's Provision.

A widow is put to her election between dower and a provision made for her in a will, when the assertion of dower on her part would defeat even partially any of the provisions of the will. (p. 591).

(Wills, 40 Cyc. p. 1905.)

3. Statutory Provisions Section 6 of Chap. 65, Code 1923 preserves to the widow her right of dower when she has been lawfully deprived of

jointure, in so much of the lands whereof, but for said jointure, she would have been dowable, as is equal in value to that of which she has been deprived, (p, 595). (Dower, 19 C. J. § 148.)

4. Dower Prayer for General Relief in Petition for Assignment of Dower Held Broad Enough to Assert Claim for Dower Because of Failure of Jointure,

A case where a petition for assignment of dower is held to be broad enough, under the prayer for general relief and in the light of the facts then developed, to assert a claim for dower because of failure in whole or in part of jointure, (p. 596).

(Dower, 19 C. J. § 266.)

5. Appeal and Error Judgment If Merits are not Fully Presented so as to Enable Court to Decide Real Questions, Lower Court Should Refuse Decree; if Real Merits are not Fully Presented so as to Enable Court to Decide Real Questions Involved, Appellate Court Will Reverse Decree and Remand Cause.

Where the real merits sought to be determined are not fully presented, either on account of defects in the pleadings or evidence, with such fullness as to enable the court to decide the real questions involved, the lower court should refuse to decree on the merits until such defects are remedied; and in a plain case the appellate court will for that reason alone reverse the decree and remand the cause for further proceedings. (Atkinson v. Sutton, 23 W. Va. 197.) (p. 596).

(Appeal and Error, 4 C. J. §§ 3239, 3240: Judgments, 33 C. J. § 84.)

6. Appeal and Error.

Point 1 of the syllabus of Beard v. Arbuckle, 19 W. Va. 145 (relating to appointment of receiver pending appeal) applied, (p. 598).

(Receivers, 3 4 Cyc. p. 49.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Appeal from Circuit Court, Marion County.

Petition by Winnie M. Jacobs, executrix of George M. Jacobs, deceased, for the assignment of dower, opposed by Florence Ward Jacobs, an infant, and others. From a decree denying petitioner dower, and from a decree appointing a receiver of certain property, she appeals.

Decree denying dower reversed; cause remanded.

Decree appointing receiver affirmed.

Victor II. Shaw, Wm. S. Haymond, and Ira E. Robinson, for appellant.

Meredith & Bell, Tusca Morris, Frank C. Haymond, M. W. Ogden and W. H. Conaway, George Henderson, Brooks S. Hutchinson, Trevy Nutter, A. J. Col-burn, and Charles Powell, for appellees.

Lively, President:

Winnie M. Jacobs appeals from a decree refusing to allow her dower in the estate of her deceased husband, Geo. M. Jacobs.

On April 15, 1914, George M. Jacobs died, testate, leaving one child, Florence, and his wife, Winnie M. Jacobs, surviving him. His personal estate was appraised at $55,033.34, and his real estate at $82,300. His will, dated December 24, 1912, gave to his mother a life estate in a house and lot at Worthington, and an annuity of $300.00 payable monthly. To his wife (appellant) he gave a life estate in all his property real and personal, subject to the life estate in the specific property willed the mother, and also subject to the maintenance, support and education of the daughter to whom all the property went as remainderman upon the ending of the wife's life estate. Should the daughter die without issue surviving her before the death of the wife, then the latter took all the estate in fee. The wife, Winnie M., was nominated as executrix without bond and was directed to sell a sufficient amount of the estate, either real or personal, or both, to pay the indebtedness, and to execute proper deeds therefor. The will was duly probated April 22, 1914. Winnie M. qualified as executrix, giving bond without surety, and took charge of the estate as such. In March, 1916, the executrix filed her bill making herself in her individual capacity a party defendant, together with her daughter and the various creditors, charging that the testator owed a large number of debts, most of which were evidenced by notes given to him and others by J. V. Thompson, and endorsed over to banks and other persons, and that the personal estate was insufficient to pay the same. The will was exhibited with the bill. No allegation is made therein respecting the interest of defendant, Winnie M. Jacobs, in the estate. The prayer asked that the liabilities and assets be ascertained by a master commissioner, the personal estate be applied to the indebtedness as far as it would go, and for general relief.

Nothing seems to have been done with the case until 1919 when it was referred to a commissioner for the purpose of stating the usual account in such cases. The account was filed March 1, 1923, by which it appeared that the indebtedness then unpaid amounted to $192,428.87; that the real estate not disposed of by the executrix consisted of the Jacobs dwelling and lot valued at $25,000.00, and the Jacobs office building valued at $200,000.00 with a rental value of about $12,000; that the executrix had realized from sales of real estate $16,000, and from sales of personal estate $30,357.50, making a total of $46,357.50; and that she had paid out on the indebtedness the sum of $47,771.69, leaving a balance in her favor of $1,414.19 against the estate. The indebtedness paid consisted of funeral and medical expenses $1,531.30; taxes assessed in lifetime of testator $1,181.87; counsel fees to Harry Shaw $3,725.25; expenses for maintaining the Jacobs building in 1914, such as gas, electric, janitor and repair bills, $2,466.30; a deed of trust lien, on the Jacobs building of $37,755.44; and joint indebtedness of testator with Arnett and Price, $1,111.53. The personal property owned by the testator at the time of his death was valued at $55,033.34, and the executrix had sold and realized therefrom the sum of $30,357.50, leaving personal property in her hands valued at $24,333.33. The report does not show what sums went into her hands, either as executrix or as tenant for life, from the rents, issues and profits of the estate. By decree of July 3, 1923, the commissioner's report was confirmed, and the executrix was directed to sell the remaining personal property valued at $24,333.33 and apply the proceeds to the payment of debts. The amount overpaid by the executrix on the debts, namely, $1,414.19, was first to be deducted from the proceeds of the personal estate to reimburse the executrix. The remaining real estate was decreed to be sold for payment of the debts as ascertained. On October 30, 1923, the home property of the testator was sold by the commissioner to "Winnie M. Jacobs for $22,000.00, and on December 24, 1923, the Jacobs office building was sold, M. L. Hutchinson being the purchaser at $151,000, the sales being made upon the condition that the properties were free of dower claim of the widow.

On December 12, 1924, Winnie M. Jacobs filed her petition in the case in open court asking for assignment of dower to her in the dwelling house and office building, either in kind or cash as she might elect. The creditors demurred to and answered her petition, charging that she is barred of dower by the statute of limitations; and is barred because she failed to renounce the will within one year from its probate, but, on the contrary, had accepted the will in lieu of dower and had realized therefrom in rents, issues and profits since the testator's death, about $120,000.00; and that she is barred of dower by the decree of July 3, 1923, confirming the report and directing sale, as an adjudication. She filed a special reply to the answer to her petition, in which she denied being barred of dower as set out in the answer, but admitted that she had taken possession of all the property and had collected the rents therefrom, which she avers were less than $12,000.00 per year. The creditors took depositions of tenants occupying the office building, showing that for many years they had paid specific sums for office rent therein. It appears from this evidence that she collected the rents up until December 1, 1920, as executrix, and after that date collected the rents as Winnie M. Jacobs. These depositions indicate that the rents amounted to about $1,000.00 per month. She has not undertaken to give any statement of the actual amount of rent collected, or the expense of maintenance of the buildings; but contents herself by saying in her special reply that the rents would not amount to $12,000.00 per year, and whether she collected little or much it cannot affect her claim for dower.

On February 4, 1925, dower was denied her by decree, and the...