Mairs v. Cent. Trust Co., (No. 9624)

Citation127 W.Va. 795
Decision Date03 July 1945
Docket Number(No. 9624)
PartiesBessie A. Mairs v. Central Trust Company, Trustee,etc., et al.
CourtSupreme Court of West Virginia
1. Principal and Agent

An agency is terminated by the death of the principal where no interest in the subject matter thereof is vested in the agent.

2. Trusts

Where a testamentary trustee is required to pay monthly to the beneficiary of a trust a stated sum out of the net income of the trust estate and the person who is trustee, acting in another capacity relative to the property of the testator, without authority applies a portion of the net income to the payment of interest and principal of a debt which is a lien on the principal part of the trust estate, such beneficiary is entitled to reimbursement, with interest from the due date of each installment.

3. Interest

Interest is not payable on a legacy until expiration of one year from the order conferring authority on the first personal representative of the testator, and not then unless a report by the commissioner of accounts of the claims against the estate is made and confirmed and no appeal has been taken from the order of confirmation. Code, 44-2-25.

4. Mines and Minerals

Royalty derived from the production of gas is principal rather than income, where the well from which such gas is produced is not open at the time of the death of the owner of the preceding estate of inheritance or the opening of such well has not been specifically authorized by him.

Fox and Haymond, Judges, absent.

Appeal from Circuit Court, Kanawha County.

Suit by Bessie A. Mairs against Central Trust Company, trustee under the last will and testament of Atlee Mairs and others, to recover money allegedly due to plaintiff under the testamentary trust and for an accounting. From the decree, the trustee and plaintiff appeal.

Affirmed in part; reversed in part; and remanded.

Brown, Jackson & Knight and John C. Morrison, for appellants.

C. Paul Heavener, for appellee.

Lovins, President:

This suit was instituted by Bessie A. Mairs in the Circuit Court of Kanawha County against Central Trust Company, Trustee under the last will and testament of Atlee Mairs, Daniel A. Mairs, and Robert L. Mairs, infants. Bessie J. Delaney and Tressa Mathes were subsequently made parties defendant. After the pleadings were filed the suit was transferred to the Court of Common Pleas of Kanawha County for hearing. A decree was entered by the court of common pleas granting substantially the relief prayed for. Central Trust Company appealed from the decree to the circuit court, in which appeal Bessie A. Mairs filed cross assignments of error. Upon hearing in the circuit court a decree was entered affirming in part and reversing in part the decree of the trial court. Central Trust Company prosecutes this appeal from the decree of the circuit court, and Bessie A. Mairs likewise complains of said decree and assigns errors.

At the time of his death Atlee Mairs owned two adjoining parcels of land in the City of Charleston, West Virginia, one of which was unimproved and on the other was located a five-unit apartment house. He also owned an interest in real estate situate in Kanawha County, which after his death was leased by Central Trust Company, Trustee, for oil and gas purposes. Gas was produced from the land, and the trustee, commencing in the year 1938, received royalty on the gas produced therefrom. Mairs executed a deed of trust, dated April 15, 1931, by which he conveyed the apartment house and vacant lot to Central Trust Company, Trustee, to secure the payment of $25,000.00 evidenced by fifty notes for $500.00 each, bearing interest at six per centum per annum, payable to bearer. Five of said notes were payable each year, commencing April 15, 1933. The existence of the trust deed is admitted, and a copy thereof was ordered to be made a part of the record by the trial court, but the trust deed is not incorporated in the record before us, and we cannot consider its provisions.

Mairs and Central Trust Company entered into a property management agreement, dated April 17, 1931, by which the apartment house property and vacant lot were placed under the exclusive management of Central Trust Company as agent for a period of eleven years, or until the indebtedness secured by the trust deed hereinabove mentioned should be fully paid. The agreement states that Mairs would construct a ten-unit apartment house on the vacant lot, which was done. It is stipulated that the income from the apartment house property should be applied to payment of: (1) Commission to Central Trust Company; (2) taxes and assessments;

(3) charges for repairs, advertising, and incidental supplies; (4) principal and interest of the notes hereinabove mentioned; (5) premiums for insurance on the property;

(6) premiums on life insurance policy in the amount of $25,000.00 to be issued on the life of Atlee Mairs, payable to Central Trust Company as beneficiary. The residue of the amounts collected was to be held subject to Mairs' order.

Mairs died testate on November 14, 1931, and by his will bequeathed to Bessie A. Mairs, his widow, $1,000.00 and other personal property, and devised and bequeathed the residue of his estate to Central Trust Company, Trustee, in trust. The trustee was given power to hold, manage, and control the trust property, and to receive the rents, issues and profits therefrom, with power to lease, sell, and dispose of the same. After payment of taxes, insurance, repairs and other necessary expenses, including trustee's commissions, the trustee was directed to pay Bessie A. Mairs out of the net income the sum of $250.00 a month for life, or so long as she remains unmarried "if the net income from said trust estate is sufficient to pay said sum; if not, then as much thereof as such net income amounts to, calculated on a monthly basis." The will provided that the sum of $250.00 should be used for the support of Bessie A. Mairs and the children of testator, and that if Bessie A. Mairs should remarry that $100.00 a month should be paid to her and $150.00 a month should be paid to or for the benefit of testator's children. Testator directed that any surplus of net income remaining after the payments aforesaid should be set aside and invested by the trustee to provide a fund for the education, maintenance and support of his children surviving him. In the event of the death of Bessie A. Mairs and testator's children without issue surviving and upon termination of the trust, the trust estate then remaining was limited over to Bessie J. Delaney and Tressa Mathes, or their heirs. The will appointed Central Trust Company executor thereof. Other provisions of the will are not pertinent to the issues here presented.

Central Trust Company qualified as executor and trustee under the will on November 20, 1931, and has been administering the estate since that time. The estate, consisting principally of the real estate heretofore mentioned, was appraised at $76,573.03. During the first year of the administration of the estate, debts amounting to $4,176.68 were paid, and during the second year, which ended November 20, 1933, debts amounting to $967.00 were paid. It was unnecessary to sell any personal property to satisfy such indebtedness. The nature of the indebtedness so paid is not shown by the record, nor does it appear that any claims against the estate were filed with the commissioner of accounts and report thereof made by such officer. After November 30, 1933, the executor and trustee made no disbursements other than to pay administrative expenses, the legacy of $1,000.00 and the monthly sums due Bessie A. Mairs in whole or in part. In June, 1938, and since that time, the trustee has paid the sum of $250.00 a month, as provided by the will of her husband.

Central Trust Company, as agent under the property management agreement, collected rents from the apartment house property, disbursed the same for its compensation, taxes and repairs and paid the interest on the notes hereinabove mentioned and the principal thereof in the amount of $22,500.00. Central Trust Company, as agent, then paid the residue of the income derived from rents collected to Central Trust Company, executor and trustee under the will. The payment of the principal and interest of the lien by Central Trust Company, as agent, reduced the net income paid to the executor and trustee, so that the full amount of $250.00 a month could not be paid to Bessie A. Mairs. However, partial payments were made. She acquiesced in the application of the rentals received from the apartment house property to payment of said interest and principal.

Central Trust Company, as trustee and executor, included in its reports and settlements before the commissioner of accounts, the sums received by it as agent, executor and trustee.

This suit was commenced by Bessie A. Mairs to recover deficits in the monthly installments accruing from the death of her husband until and including the month of May, 1938, and to recover interest on the $1,000.00 legacy from one year after Mairs' death until paid.

After a hearing the trial chancellor decreed that plaintiff recover the amount of monthly deficits from the month of December, 1933, to and including the month of May, 1938, together with interest thereon from the respective due dates of such deficits, and that said recovery be paid out of principal or income of the trust estate.

The decree also sets forth that the principal of the monthly installments accruing from December, 1933, to and including the month of May, 1938, amount to $13,-500.00, with interest thereon to April 14, 1942, amounting to $4,961.25; that from the aggregate of such principal and interest, payments on the principal amount in the sum of $6,445.00, plus interest calculated thereon for the elapsed time in the amount of $2,177.65 should be deducted, and that the balance due plaintiff amounted to $9,838.60.

The trial...

To continue reading

Request your trial
5 cases
  • Morton v. Godfrey L. Cabot, Inc., 10119
    • United States
    • Supreme Court of West Virginia
    • March 9, 1951
    ...'one who withholds money from the rightful owner on the date when it should be paid is liable for interest.' Mairs v. Central Trust Co., 127 W.Va. 795, 803, 34 S.E.2d 742, 747. See Code, 56-6-27. No liability for interest arises by implication prior to the date a debt is due. See Lockard v.......
  • Willey v. Travelers Indem. Co.
    • United States
    • Supreme Court of West Virginia
    • December 21, 1972
    ...interest from the date of the judgment.' See also Morton v. Godfrey L. Cabot, Inc., 134 W.Va. 55, 63 S.E.2d 861; Mairs v. Central Trust Co., 127 W.Va. 795, 34 S.E.2d 742; Hallauer v. Fire Association of Philadelphia, 83 W.Va. 401, 98 S.E. 441; and Shank v. Groff, 45 W.Va. 543, 32 S.E. 248. ......
  • Ewing v. First Nat. Bank of Atlanta
    • United States
    • Supreme Court of Georgia
    • July 13, 1953
    ...of like tenor, see Garrison v. Garrison, 354 Mo. 62, 188 S.W.2d 644; Clarke v. Clarke, 246 Ala. 170, 19 So.2d 526; Mairs v. Central Trust co., 127 W.Va. 795, 34 S.E.2d 742; Rezzemini v. Brooks, 236 N.Y. 184, 140 N.E. 237; In re Kennedy's Estate, 141 Pa. 479, 21 A. 671; De Korwin v. First Na......
  • Youngman v. Shular, 12866
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • June 1, 1955
    ...S.E. 329; Koen v. Bartlett, 41 W.Va. 559, 23 S.E. 664, 31 L.R.A. 128; Minner v. Minner, 84 W.Va. 679, 100 S.E. 509; Mairs v. Central Trust Co., 127 W.Va. 795, 34 S.E.2d 742; Benson v. Nyman, 136 Kan. 455, 16 P.2d 963; Andrews v. Andrews, 31 Ind.App. 189, 67 N.E. 461; Richmond Natural Gas Co......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT