McGlaughlin v. McGlaughlin's Legatees
| Decision Date | 31 March 1897 |
| Parties | McGLAUGHLIN et al. v. McGLAUGHLIN'S LEGATEES et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. An executor who exhausts the personal estate of his testator in paying specific legacies, without taking a refunding bond will, as to the creditors of said testator, be considered as having committed a devastavit, whether he had notice of the debts due such creditors at the time he paid such legacies or not.
2. Where an executor has died after partially administering the estate of his decedent, and a suit is brought to recover a claim against said estate simply, no defendant is necessary except the personal representative.
3. An executor who has failed to comply with the requirements of section 7 of chapter 87 of the Code, so far as the same requires him to lay his account of receipts for any year, within six months after its expiration, before a commissioner, shall have no compensation for his services during said year.
4. When any provision for a wife is made in her husband's will unless, within one year from the time of the admission of said will to probate, she renounces such provision, as provided in section 11 of chapter 78 of the Code, she shall have no more of such estate than is given her by the will.
5. An executor cannot defend himself against the suit of a creditor by showing that before he had notice of the plaintiff's demand he paid over the assets to the legatees of the testator, unless he took and filed a refunding bond as required by law.
6. A will which contains the following clause: "I desire that all my just debts be paid out of my estate as soon after my decease as convenient," does not thereby create a charge upon the testator's real estate. Real estate is not chargeable with pecuniary legacies unless the intention so to charge is expressed in the will, or such intention appears by implication.
Appeal from circuit court, Pocahontas county.
Petition by Hugh P. McGlaughlin and others against David McGlaughlin executor of the will of Hugh McGlaughlin, deceased, and others. From the decree rendered, Uriah Hevener administrator of the estate of David McGlaughlin, deceased appeals. Modified.
H. S. Rucker, for appellant.
R. S. Turk, for appellees.
ENGLISH, P.
This was a suit in equity brought by Hugh P. McGlaughlin, Muscoe H. Corbett, and William Skeen against David McGlaughlin executor of the last will and testament of Hugh McGlaughlin, deceased, Elizabeth McGlaughlin, his widow, and others, grandchildren, devisees, and legatees of said Hugh McGlaughlin, deceased, in the Circuit court of Pocahontas county. The plaintiffs in their bill allege that on the 8th day of March, 1866, said Hugh McGlaughlin made and published his last will and testament, which will was admitted to probate on the 14th day of May, in the same year, and proceeds to set forth in detail the various bequests and devises contained in said will; that the plaintiff Muscoe H. Corbett is the assignee of $125, bequeathed to John A. McGlaughlin, which was assigned to him on the 22d day of March, 1878; that David McGlaughlin, the executor named in said will, qualified as such some time in the year 1866; that on the 6th day of June, 1868, said executor made an ex parte settlement of his accounts as such, and was found to be indebted to the estate in the sum of $45.87 principal, and $3.61 interest; that on the 1st of June, 1873, said executor made another ex parte settlement of his account, and was found due the estate $43.87, and on the 18th of February, 1878, he made another settlement, and was found due the estate $43.89 principal, and $13.46 interest, and on the 16th of October, 1883, he made another settlement, by which he was found indebted to the estate $71.25, which he paid on debts due the complainants McGlaughlin and Corbett, and nothing was left to pay any other debts; that said testator was indebted to complainants McGlaughlin and Corbett, and that on the 5th day of September, 1867, the complainant Hugh P. McGlaughlin obtained a judgment against said executor for $100, with interest from the 15th day of September, 1866, till paid, and the costs, upon which judgment the executor made some payments, but leaving a balance unpaid; that the plaintiff Muscoe H. Corbett obtained a judgment on the same day for the same amount, with like interest and costs, upon which judgments some payments have been made, but leaving a balance still due and unpaid thereon; that the plaintiff William Skeen obtained a judgment upon a bond executed for borrowed money against the executor on the 2d day of May, 1877, for $357.58, with interest from that date till paid, and $9.90 costs, upon which judgment said executor failed to make any payment, and the whole amount is still due and unpaid, copies of which judgments were exhibited; that the testator's widow still lives, and was made a party to the bill; and that John E. McGlaughlin and Margaret Hogsett were infants. It is further alleged that the executor did not sell any of the personal property willed to the widow or to the plaintiffs McGlaughlin and Corbett, but handed it over to the legatees, and as a consequence there is a deficiency of assets for the payment of debts, and a resort must be had to the realty, if the personalty was not responsible. Complainants ask the court to construe testator's will in the light of the law, and as, in the event of a deficiency of assets, testator failed to designate what property was to be sold for payment of debts, that the court may judicially settle the question, and render such decree as may be just and equitable, and enable them to collect their debts; that a settlement of the accounts of the executor before a commissioner of the court might be decreed, creditors (if any other than complainants) convened, and required to prove their debts, and an account of debts be taken and reported by the commissioner, an account of the real estate of which testator died seised, the value and rental value thereof taken and reported; that, in the event the rents will pay complainants' debts within five years, said lands be decreed to be rented for that purpose, and, if said land will not rent for a sum sufficient to pay within five years, that the lands liable for the payment of complainants' debts be decreed to be sold for the payment of the same. Thomas H. McGlaughlin and others, grandchildren of the testator, demurred to the plaintiffs' bill, and for answer say that by the terms of said testator's will they are to receive equally the proceeds of the sale of said testator's lands when sold according to the terms of the will; that they know nothing of the pretended debts alleged to be due the plaintiffs by or from their grandfather's estate, but, if any debts ever existed, they are now barred by the statute of limitations, and they rely upon and plead the said statute to all three of said pretended debts, and deny their validity. They further allege that the judg ments set forth against the executor in the plaintiffs' bill are not prima facie evidence of the justness of any claim on the part of the plaintiffs, or either of them, against respondents, and that such judgments against the executor do not and have not stopped the statute of limitations as against respondents; that the claims of H. P. McGlaughlin and M. H. Corbett are identical, and are open accounts, dated in 1866, for work done on the decedent's farm, and are for $100 each, copies of which accounts are exhibited with said answer; that on these accounts actions were instituted on the 7th day of February, 1867, against the executor, and judgment obtained thereon against said executor in their favor on the 5th day of September, 1867; that the judgment of the plaintiff William Skeen purports to have been obtained on a writing obligatory of Hugh McGlaughlin to him for $175, dated and due the 3d of February, 1854, and an attested copy of the declaration of said Skeen filed against the executor was exhibited with said answer; that said judgment was not prima facie evidence of the justness of said pretended debt as against respondents, and did not stop the statute of limitations as to them, and said obligation, if it ever had any legal existence, was long since barred by the statute as to them, and they expressly pleaded and relied upon said statute. And they further allege that it appears from the appraisement bill that Hugh McGlaughlin left a large amount of personal property which should have been applied in payment of his debts, and they pray the dismissal of the plaintiffs' suit. The defendants also filed an amended answer, in which they allege that personal property of the value of $897.75 came into the hands of said David McGlaughlin, the executor, of which amount of property he only sold $402 worth, and that he collected various bonds, as shown by his settlement, amounting to nearly or quite $800 more, naming the parties from whom said collections were made, some of which money he paid out upon a number of small claims presented to him by various persons, as appears from the various settlements made by said executor of his accounts, none of which claims were ever proven in such manner as made it proper and right for said executor to pay them; that the amount of personalty which came into the hands of said executor was amply sufficient to have more than paid all of the just debts of the testator and the pretended claims of plaintiffs, but instead of so doing he paid it out to the devisees and legatees and the testator's widow; that he took no refunding bonds from the legatees, and has made himself liable to the extent of the personal property which came into his hands, and that it would be inequitable and...
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