Lajdley v. Kline, Admx.

• Decision Date: 23 February 1875
• Citation: 8 W.Va. 218
• Court: West Virginia Supreme Court
• Parties: Lajdley v. Kline, Admx.

8 W.Va. 218

Lajdley

v.Kline, Admx.

Supreme Court of Appeals of West Virginia.

February 23, 1875.

1. Generally, the personal assets of an intestate, so far as they have

not been administered, should be administered under the direction of the court, and applied to the payment of the debts of the intestate, and in relief of the realty which descended to the legal heir in a suit or proceeding, to subject the realty to the payment of the debts of the decedent.

2. Although, under the legislation of this State, as contained in the

Code, real as well as personal estate is made subject to the payment of the just debts of the intestate, still the realty which descended to the heir should not be decreed to be sold for the payment of judgment liens until resort is first had to the personal estate, so far as practicable, and without producing unreasonable delay.

3. The real estate of an intestate in no wise, and for no purpose, goes

into the possession or control of the administrator, but the legal title to the same descends directly to the legal heirs, subject, of course, to the just debts of the intestate, in so far at least at the personalty falls short of paying the same.

4. A judgment obtained during the life of an intestate is a lien upon

his lands in the hands of his heirs for the payment thereof, and is entitled to priority of payment out of the proceeds of the sale thereof over a simple contract creditor, who acquired no equal or superior lien for his debt upon the realty during the life of the debtor.

5. A judgment obtained by a creditor against the administrator is

not a judgment lien on the realty of the intestate.

6. Generally the court should not decree the sale of the realty of an

intestate to pay debts or judgment liens before the accounts of the administrator have been settled and the unadministered assets ascertained.

7. Unless the widow of the intestate elects, in a proper manner, to.

take the value of her dower in the real estate which her husband owned at his death, her dower should be assigned to her in the realty before sale thereof for the payment of the intestate's detts.

8. There being no privity between the personal representative and

the party to whom the real estate has descended or been devised, a judgment against such personal representative is not even prima facie evidence against the heir or devisee.

9. The thirty-sixth section of chapter one hundred and twenty-five of

the Code, so far as it relates to taking material allegations of a bill, or material allegations of new matter in an answer constituting a claim for affirmative relief, as true, should not be applied strictly, if at all, to the answers of infant defendants by guardian, ad litem.

10. When a commissioner in a case of a creditor's bill is directed by the decree of court to hear proof of debts against the estate of an intestate, and there are infant defendants whose lands are sought to be sold, and the commissioner reports debts or judgment liens against the land, it is the duty of the court to examine the vouchers and evidence upon which the report is based and see if they are properly proven and their existence established before confirming the report and directing a sale of the realty, whether there were exceptions filed to the report or not; upon the ground that there was no sufficient evidence before the commissioner establishing such debts or judgments. And if the court confirms such report in the absence of sufficient evidence to establish the existence of such debts or judgments, and decrees the sale of the realty, the appellate court will reverse such decree for that reason.

Appeal and supersedeas granted on the petition of Elizabeth Kline, admx. of D. H. Kline and the infant children and heirs of said D. II. Kline, to wit: Edwin B., Sally S. and Daniel H. Kline, by John A. Warth, their guardian ad litem, from certain decrees of the circuit court of Kanawha county, rendered in a suit therein pending, wherein James M. Laidley was complainant, and the petitioners and Belle, William M. and Mary Jane Kline, adult children of said D. H. Kline, and others, were respondents. The material facts appear in the statement of the case by the Court.

The Hon. James W. Hoge, judge of said circuit court, presided at the hearing below.

Smith & Knight and John A. Warih, for the appellants.

James H. Nash and Charles Iledriek, for the appellee.

Haymond, President:

The plaintiff filed his bill in the circuit court of Kanawha county, in August, 1870 against Elizabeth Kline, the widow and administratrix of Daniel H. Kline, deceased and Bell, William M. and Mary Jane Kline, who are adults and Daniel H., Edwin B. and Sally Kline, infant children and the legal heirs of said decedent and others. The plaintiff alleges in his bill that the decedent, at the time of his death, was indebted to him in considerable sums of money for a portion of which, he has obtained judgments at law against the administratrix; to another portion the administratrix plead the statute of limitations and thereby defeated his recovery; that the judgments obtained by him against the administrator are as follows, viz: $339.30 with interest from the 11th day of April, 1870, and $23.23 costs, and $1,296.95 with interest from the 11th day of April, 1870, and $23.58 costs; that on these j udgments writs of fieri facias were issued and placed in the hands of the sheriff of said county and returned "no property found;" that at the spring term? 1858, of the circuit court for said county, he obtained a judgment, in the name of Lewis Ruffner, against said decedent, Moses Norton and Thomas J. Buster for $264 to be discharged by the payment of $134.97, with interest thereon from the 25th day of January, 1858, and $5.90, costs of suit; that this judgment was rendered on a forthcoming bond and the bond had been assigned by Ruffner to plaintiff for valuable consideration; that said decedent was the principal debtor in said bond and the others, against whom said judgment was rendered, were securities; that several writs of fieri facias wrere issued on said last named judgment and returned "no property found;" that he (plaintiff) has subsisting causes of action against decedent upon which suits are now depending in the said circuit court and if judgments should be ren-j dered for him exhibits thereof will be filed plaintiff charges that decedent left very little personal estate, perhaps not more than sufficient to pay his funeral expenses, but that he was seized of several valuable tracts of land; that the lands are subject to the liens of judgments rendered against the decedent in his lifetime, and after satisfying the same are liable to the other debts of decedent, plaintiff also prays that a commissioner of the said court state and report an account of the debts of the decedent showing their several priorities, and also showing of what lands i he decedent died seized, and that the lands so far as may be necessary to satisfy the debts of the decedent be sold to satisfy such indebtedness. Said Ruffner, Buster and Norton are also made defendants to the bill.

Ruffner filed his answer, admitting the assignment by him to plaintiff, of the judgment for $134.97 mentioned in the bill.

Afterwards, the defendants, Belle, William and Mary J. Kline, filed their answer to the bill. This answer was filed on the 7th day of November, 1870. The defendants last named, in their answer, admit the death of their father, and that he died intestate, leaving Elizabeth Kline, his widow, who, after his death, qualified as his administratrix, and that they and the infant defendants are the heirs at law of said decedent. They deny that decedent was in anywise indebted to plaintiff at his death. They admit that plaintiff did obtain the two judgments at law in the bill mentioned, against said administratrix, but they deny that the claims for which the said judgments were obtained, or any part thereof, were justly due from the estate of decedent to complainant. They deny that said judgments against the administratrix bind the heirs of decedent, or the realty which descended to them. They insist that plaintiff should establish the claims, for which the judgments were rendered, independent of the judgments, as much as though the same supreme court of appeals

were never rendered. They insist that the heirs are entitled to all the defences thereto which might have been made by the administratrix. They aver all judgments mentioned in the bill which were obtained in the lifetime of decedent, were fully paid by decedent before his death. They rely upon and plead the statute of limitations to the claims on which the judgments against the administratrix were obtained. And they aver that one of the said judgments, last named, was obtained against the administratrix on the assignments of judgments that had been refunded to plaintiff by decedent during his life, and that, in fact, the consideration paid for said assignment, by plaintiff, was only nominal. And they aver that Warth and English, who owed the judgments, were, at the time of the pretended assignment, notoriously insolvent. They also aver that the judgment obtained against the administratrix on the note of D. H. Kline, that matured after his death, was wrongfully obtained &c and that on the 21st day of June, 1855, decedent and plaintiff settled in full, as appears from the statement filed with their answer marked "A.," which statement is wholly in the handwriting of plaintiff. They also aver that decedent, at said settlement, assigned to plaintiff an interest in a large claim he then held against Warth and English, secured by a deed of trust on their lands; that afterwards decedent paid and satisfied to plaintiff the sum so secured to him; and as evidence of the fact, they file a paper in writing marked "D.," as part of their answer, which paper, they aver, is wholly in the handwriting of the complainant, except the signature thereto which they aver is in the...