McIntosh's Estate, In re

• Decision Date: 16 June 1959
• Docket Number: No. 11016,11016
• Court: West Virginia Supreme Court
• Parties: In re Settlement of the ESTATE OF Frederick F. McINTOSH, Sr.

Page 153

109 S.E.2d 153

144 W.Va. 583

In re Settlement of the ESTATE OF Frederick F. McINTOSH, Sr.

No. 11016.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1959.

Decided June 16, 1959.

Syllabus by the Court

1. 'An adjudication by a court having jurisdiction of the subject-matter and the parties is final and conclusive, not only as to the matters actually determined, but as to every other matter which the parties might have litigated as incident thereto and coming within the legitimate purview of the subject-matter of the action. It is not essential that the matter should have been formally put in issue in a former suit, but it is sufficient that the status of the suit was such that the parties might have had the matter disposed of on its merits. An erroneous ruling of the court will not prevent the matter from being res judicata.' Point 1, Syllabus, Sayre's Adm'r v. Harpold, 33 W.Va. 553 .

2. Findings of fact disclosed in a report of settlement by a commissioner of accounts, approved by the county court after overruling exceptions to the report, where a writ of error has been refused by the circuit court to the order of the county court confirming the report, and where no error appears on the face of the record, will not be disturbed by this Court, unless against the preponderance of the evidence or plainly wrong.

3. A commissioner of accounts is not required to return with a report of settlement vouchers supporting claims of creditors, unless requested to do so by a party in interest, or by the commissioner deemed necessary.

Samuel D. Lopinsky, Ivor Boiarsky, Charleston, Wilbur Webb, Spencer, John Ramsey, Meredith, Mark Bogart, New York City, for plaintiffs in error.

Chas. E. Mahan, Fayetteville, G. F. Hedges, Jr., Spencer, Robert W. Burk, Thomas W. Bayley, Parkersburg, for defendants in error.

GIVEN, President.

By consent of the heirs and distributees, F. F. McIntosh, Jr., was appointed administrator of the estate of his father, F. F. McIntosh, Sr., who died intestate June 28, 1950, leaving a very substantial estate, consisting of real and personal property, including undivided interests in numerous partnerships. After appraisement of the estate, apparently in a manner satisfactory to all interested parties, and after the commissioner of accounts, to whom the estate had been referred for settlement, had made a report of creditors and beneficiaries, on November 28, 1951, the first annual report of settlement of the accounts of the administrator was filed. On December 1, 1952, the second report of settlement was filed. As to such reports, though covering a very large proportion of the estate and showing payments to numerous creditors, and showing substantial payments to each of the heirs and distributees, no exception was filed. The third and final report of settlement, though 'made up and completed' November 12, 1953, was not filed until November 20, 1957, after the entry of an order by the County Court of Roane County requiring the filing thereof. The delay, in part, at least, was occasioned by action of the parties in interest. The final report was confirmed by the County Court of Roane County on December 4, 1957.

On December 11, 1953, Dorothy E. McIntosh, one of the two plaintiffs in error, filed before the commissioner of accounts her exceptions to the final report. After the filing of the report with the county court, further exceptions to the report were filed by plaintiffs in error. The exceptions related to questions concerning the manner of the accounting of the administrator, waste and improper management of the estate by the administrator, receipt of sums by the administrator not reported, improper withdrawals of sums from the estate by the administrator, failure of the commissioner of accounts to return proper vouchers with his reports, and the allowance of improper commissions to the administrator.

The final report shows on its face the disbursement and distribution of the balance remaining in the hands of the administrator at the time of the making of the prior report of settlement, and the additional receipts received by him subsequent to that time. The distribution, after payment of all claims of creditors reported, consisted largely of undivided interests in numerous mining partnerships, in real estate, and certain producing gas wells, and a division of certain personal property. Insofar as can be determined from the several reports, all claims of creditors have been satisfied, and a complete division or distribution of the remaining estate distributed to the interested parties. No inequity is perceived on the face of the report as to such division or distribution, and no attempt was made by plaintiffs in error, or other person, to establish by evidence any such inequity, or, in fact, to substantiate any question raised by the exceptions.

The several reports of settlement were confirmed by the County Court of Roane County, and the circuit court of that county refused a writ of error to the order confirming the final report of settlement. The errors assigned in the petition to the circuit court praying the writ of error, included, substantially, at least, all questions raised by the exceptions to the final report.

By an instrument dated July 3, 1950, designated 'Power of Attorney', Virginia McGarr McIntosh, Dorothy E. McIntosh and Mary Alice McIntosh authorized and empowered F. F. McIntosh, Jr., as their attorney in fact, for a period of ten years, 'to take over, manage and control' all of the estate of F. F. McIntosh, Sr., including all property, 'real, personal and mixed, and wherever located or situated, of which the said Frederick F. McIntosh, Sr., died seized and possessed, including cash in banks, all United States Government Bonds, securities of all kinds and character * * * to make disposition by sale or otherwise of any or all of said property * * * to collect all rentals or other incomes or assets and royalties', with 'power and authority * * * to compensate himself to a reasonable extent for the services required of him hereunder, if he so elects'.

By an instrument dated November 29, 1955, designated 'Deed and Assignment', the widow and each of the heirs and distributees of the estate sold and conveyed unto trustees a very substantial part of the estate, in trust, 'to hold, manage, sell and dispose of', after appraisal by the trustees. The instrument authorized the trustees to sell unto F. F. McIntosh, Jr., within sixty days after the appraisal, the interests of his co-tenants in 'any tract or parcel of land which he shall designate by writing'. Any property not purchased by F. F. McIntosh, Jr., was to be sold by the trustees. By a subsequent written instrument, dated March 12, 1956, the trustees sold and conveyed to F. F. McIntosh, Jr., for a valuable consideration, the other parties in interest joining in the conveyance, 'all of the assets and property of the partnership of F. F. McIntosh & Son, including, but not limited to, the merchandise and stock in trade, fixtures, supplies and equipment, accounts and other receivables, cash on hand and in bank, cash value of life insurance, stocks, bonds and leases, and the good will and trade name * * *. By a further 'Memorandum of Agreement', dated March 15, 1956, the interested parties sold and conveyed unto F. F. McIntosh, Jr., certain other personal property, and all interested parties agreed 'that all acts and things done by the appraisers and trustees under and pursuant to said Deed and Assignment of November 29, 1955, be, and the same are, hereby approved, ratified and confirmed'. It seems unnecessary to here detail other terms and express agreements concerning the estate by or among the interested parties.

Before the commissioner of accounts filed with the County Court of Roane County his final report of settlement, the administrator filed before the commissioner of accounts, after proper notice, a plea of res judicata, together with certain testimony and exhibits, in support of the plea. The plea alleges, in effect, that 'all of the parties in interest' were before the United States District Court for the Southern District of West Virginia, 'on the very same matters and issues now pending in this court and presently before' the commissioner of accounts; that pursuant to a written agreement by all of such parties, heirs and distributees, a final order 'adjudicating all of such matters, things and issues', was entered dismissing the 'action agreed settled out of court, with prejudice to all of the parties thereto'. The order mentioned reads: 'This day came the plaintiff, Mary Alice McIntosh, by counsel, and announced in open court that all matters in controversy have been compromised and settled and moved that this action be dismissed.

'And there being no objection thereto, this action is dismissed, settled and agreed and is Ordered retired from the docket of this court.' The order was entered on the motion of Mary Alice McIntosh, and was 'approved' by counsel for F. F. McIntosh, Jr., Virginia McGarr McIntosh and Dorothy E....