Kimmel v. Shroyer
| Decision Date | 22 September 1886 |
| Citation | 28 W.Va. 505 |
| Parties | Kimmel, Adm'r. Of Nancy Rector v. Shroyer, Et Al. |
| Court | West Virginia Supreme Court |
Submitted June 15, 1886.
1. A testator bequeaths the one-third of his personal estate to his widow and the residue to three of his children, and what is claimed by the legatees to be a portion of the general estate consists of a specified sum of money and certain bonds, which the executor claims were transferred to him by the testator in his lifetime and are therefore no part of the estate. After the death of the widow a suit is brought by her administrator against the executor and legatees of said testator to compel the executor to settle his accounts, to charge him with said money and the proceeds of said bonds and for distribution of said estate. In this suit the deposition of the widow taken de bene esse, is read and portions of it relate to personal transactions and communications had in respect to said money and bonds between the executor and the testator. The deposition of the executor is also taken on his own behalf: HELD:
I. The deposition of the widow was itself incompetent evidence, and could not therefore lay the foundation for making the executor a competent witness to testify in his own behalf as to personal transactions or communications had with the deceased, nor could it make his wife a competent witness as to such transactions and communications. The testimony of both the executor and his wife as to such matters was therefore incompetent.
II. Objections to the incompetency of the testimony in such case may be made at the hearing of the cause or in the appellate court, although no exception was made to the deposition.
2. The appellate court will not in a chancery cause reverse a decree, for the reason that the circuit court erroneously overruled the appellant's exceptions to depositions and permitted the reading of incompetent testimony, where the competent evidence clearly sustains the decree; but if the evidence other than that, which is incompetent, is not plainly sufficient to justify the decree, the same will be reversed by the appellate court. (p. 513.)
Martin & Woods for appellant.
No appearance for appellee.
In February, 1882, Willis Rector died testate in Taylor county. At the time of his death he was the owner of a considerable personal estate, consisting principally of money, bonds notes and other evidences of debts due to him. By his will he bequeathed the one-third of said estate absolutely to his widow, $100.00 to Miranda Shroyer and the residue to his two daughters, Miranda Shroyer and Mary S. Ludwick, and the children of Eliza L. Harper, a deceased daughter, to be equally divided between them. Taylor M. Shroyer, the husband of said Miranda, was made executor by the will and duly qualified as such in the clerk's office of said county.
Nancy Rector, the widow of said Willis Rector, died testate in January, 1883. Her estate at the time of her death seems to have consisted only of the legacy, bequeathed to her by her late husband, the greater part of which had not
been paid over to her. Subject to certain specified legacies she bequeathed her estate to her niece, Henrietta, the wife of S. P. Kimmel, the latter of whom was duly appointed and qualified as the administrator of her estate with the said will annexed.
On May 20, 1883. S. P. Kimmel, administrator as aforesaid instituted this suit in the circuit court of Taylor county, against the said executor and legatees of the said Willis Rector, deceased, and the sureties of said executor. The plaintiff's bill, among other matters, avers that the said Taylor M. Shroyer, executor as aforesaid, has returned an appraisement of only part of the estate of his testator, and that he had failed to settle and account for the assets of said estate as required by law, that in addition to the assets reported by the executor belonging to said estate, the executor had received and was chargeable with the sum of $365.00 cash paid to him as the agent of the testator a short time before his death, and also three bonds of $500.00 each executed to the testator by Thomas B. Powell, which were placed by the testator in the hands of the executor about a month before his death to collect for him, the testator being then a feeble and decrepit old man eighty years of age, having been for months before confined to his room and almost totally blind. The prayer of the bill is that the executor may be required to account as such for said money and the proceeds of said bonds, which it is alleged he had collected, that he may settle his executorial accounts, and that the legacy bequeathed to the plaintiff's estate may be paid to the plaintiff, and for general relief.
The defendant Taylor M. Shroyer, executor, answered the bill, and in regard to said $365.00 and Powell bonds, he says, that Willis Rector with his wife occupied a portion of his house and farm for about seven years just preceding his death; that a large portion of said time, especially the last eighteen months, the said Rector was sick and confined to his bed, and that during the whole of said time said Rectors were waited upon and cared for by him and his family, and they were furnished without compensation many things necessary for their support; that in consideration of these matters and the affection for his family the said Willis Rector
gave to him said sum of $365.00 and the balance due on said Powell bonds; that after said bonds were given to him he placed them in the hands of his attorney for suit; he therefore insists that said money and the proceeds of said bonds became his property before the death of his testator and have nothing to do with his executorial accounts.
Both the plaintiff and the defendant, Shroyer, took many depositions, and after the same had been taken and filed in the cause, the court by its decree of April 1, 1884, referred the cause to a commissioner for a report and the settlement of the executorial accounts of said Shroyer. The commissioner made his report in which he did not charge the executor with said $365.00, or the proceeds of said Powell bonds, and the plaintiff excepted to said report because it failed to charge the executor with said money and the proceeds of said bonds. By a final decree entered August 7, 1884, the court overruled the plaintiff's exceptions and confirmed said report. From this decree and that of April 1, 1884, the plaintiff obtained this appeal.
The only controversy involved in this appeal is, whether or not the said Taylor M. Shroyer should be charged as executor of his testator with said money and bonds. Prior to the institution of this suit the deposition of Nancy Rector, the plaintiff's testatrix, had been taken de bene esse and the same was used by the plaintiff as evidence in this cause. In that deposition the said Nancy Rector testified, that about two or three weeks before the death of her husband, Willis Rector, she by the direction of her husband handed to the said Taylor M. Shroyer one of said Powell bonds in order that he might have suit brought upon it for her husband. She also testified, among other matters, that some time before his death her husband had sent by said Shroyer $365.00 to the bank in Grafton.
The deposition of the defendant, Taylor M. Shroyer, was taken in his own behalf, and, after he had testified that Willis Rector and his wife had lived for seven years in a part of his house; that he and his family had waited upon them and done all the work they had to do, the following questions were asked him, exceptions taken thereto and answers given by him:
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