Morris v. Anita Westerman.
Decision Date | 30 January 1917 |
Citation | 79 W.Va. 502 |
Court | West Virginia Supreme Court |
Parties | P. D. Morris, Adm'r. v. Anita Westerman et al.and Consolidated Cases.1. Husband and Wife Wife's Gift to Husband Forbearance. |
A gift or relinquishment by a married woman to her husband, of a general or residuary money legacy, given to her from an estate, by the will of a deceased person, and held by her husband as executor of the will, cannot be inferred from her mere forbearance to demand and enforce payment thereof, from her husband acting as executor, and her silence and failure so to do, with knowledge of his appropriation to his own use, of the assets of the estate, including her legacy, (p. 506).
Wife's Interest in Estate.
The duty imposed by law, upon a husband acting as the executor of an estate in which the wife is interested as the donee of money, vests in her a right of even higher dignity and character than the obligation imposed upon him by his mere promise or agreement to repay money borrowed from her separate estate; and he cannot relieve himself of the sacred and solemn duty so imposed, by his own misconduct silently submitted to by the wife. (p. 507).
toppel.
In such case, the wife is not precluded, in the interest of the husband's general creditors, from assertion against his estate, after his death, of her claim for an accounting and settlement as to what was due her from the estate upon which he administered, by the doctrine of etsoppel. (p. 507).
If, in such case, the wife preceded the husband in death and he qualified as her administrator and, as such, failed to reimburse her estate, and his administration was terminated by his death, the amount due from him as executor of the first estate is an unadministrated asset of the wife's estate, and may be recovered by her administrator de bonis non. But, as to the estate to which the fund originally belonged, it is an administered asset, and cannot be recovered by the administrator de bonis non, with the will annexed, of the first estate, (p. 514).
By virtue of sec. 25, of ch. 85, of the Code, such a debt is entitled to preference over the general debts of the deceased personal representative, in the distribution of the proceeds of such estate of his as is not required for the discharge of liens acquired in the modes prescribed by law, and of his interest in any partnership property after the payment of the social debts. (p 514).
The inaction or forbearance of the wife to assert her right against her busband acting as executor of the estate in which she is so interested, with knowledge of his conversion of the executorial estate to his own use, does not deprive her estate of the benefit of the preference so given, (p. 514).
Shares of the capital stock of a bank, belonging to an estate of which the husband is executor, transferred on the books of the bank to the wife and then assigned by her to her husband, and transferred to him on the books of the bank, and subsequently treated as his own, with her knowledge, are deemed, in the absence of clear proof to the contrary, to have been a gift from her to him. (p. 515).
S. Banks and Banking Loan on Capital Stock Collateral By-Law. A bank organized under a law which impliedly sanctions loans by it on shares of its own capital stock, as collateral security, by providing that such loans shall not exceed fifty per cent of such capital stock, can make and enforce a by-law providing that no stockholder will be permitted to sell, transfer or assign his or her stock, while indebted to the bank, and a loan made by it to one of its stockholders holding certificates of stock reciting such bylaw, are valid liens on the shares held by him. (p. 515).
9. Same Loans Statutes Retroactive Effect.
A statute subsequently passed, prohibiting banks from making loans on shares of their capital stock, as collateral security, does not invalidate a lien on shares, so previously acquired, (p. 515).
Appeal from Circuit Court, Wetzel County.
Suits by P. D. Morris, administrator, against Anita Westerman, and against W. P. Simmons and others, and by D. V. Lemon, trustee, etc., against the First National Bank of New Martinsville and others, and by W. P. Simmons, surviving, partner, etc., against P. D. Morris, administrator, and others, and C. S. Farmer, administrator de bonis non of Beulah Westerman, deceased, and as administrator de bonis non with the will annexed of W. S. Wiley, deceased. De- cree for complainant p. D. Morris, administrator, and C. S. Farmer, administrator, etc., appeals.
Reversed in part. Affirmed in part. Remanded.
A. C. Chapman and McCamic & Clarke, for appellant.
Hall & Hall, for appellee First Nat. Bank of New Martinsville. Edwin 0. Keifer, for appellee Wetzel County Bank. M. II. Willis, for appellee p. D. Morris, Adm'r. etc. M. R. Morris, for appellees New Martinsville Supply Co. and Rowland & Meisenhelder.
poffenbarger, judge:
The principal complaint against the decree appealed from is its denial of the claim of title to the major portion of the subject matter of the main suit, Morris, Adm'r. v. Westerman et al., set up by Farmer, the administrator de bonis non of Beulah Westerman, the deceased wife of plaintiff's decedent, on the ground that it was a residuary legacy belonging to her, in the hands of said decedent, at the time of his death, as the executor of her father's will. Farmer asserted this claim in a second capacity also; viz., administrator de bonis non with the will annexed of W. S. Wiley, deceased, the father of the deceased wife. The suit was brought against the heirs and creditors of Westerman, to subject his real estate to the payment of his debts, the personal property being insufficient to pay them, and to settle up his estate. Farmer, administrator, was admitted on his petition, as a defendant claiming the property to be unadministrated assets of the Wiley estate and of the estate of Westerman's deceased wife. For hearing and determination, three other suits involving property and relations in which Westerman had been interested were consolidated with the suit brought by Morris, administrator, the evidence taken once for all of them and one final decree entered. Two of the other suits were brought to settle the business of a partnership between Westerman and W. P. Simmons, and the third to obtain advice and instruction from the court, as to the distribution of a trust fund in which Westerman had held an interest.
There is no controversy of any consequence, as to the facts. On Jan'y. 22, 1903, C. G. Westerman qualified as the executor of the will of W. S. Wiley, without bond, agreeably to a provision of the will, naming him as the executor. Wiley had left a considerable estate all of which, except some specific devises and legacies, went to his daughter, Beulah Wiley, who was then the wife of C. 0. Westerman or soon afterwards became his wife. He made no inventory of the estate, caused no appraisement to be made, never made any settlement thereof, and never delivered or set over to his wife the property and bonds now in controversy. He resided in the home of Wiley,-at the time of the death of the latter, and continued to reside there, until the time of his death. Of that property, he made no disposition. He caused to be transferred to his wife a portion of the bank stock her father owned. She died intestate, late in 1909, or early in 1910, and her husband qualified as her administrator, but he did not charge himself with any of the property in controversy, as such. Property of hers, including the bank stock transferred to her, was appraised at $16,452.50, the bank stock being the principal item. He died intestate, Febr'y. 8, 1912, leaving five children ranging in age from two to twelve years, and property was appraised, as belonging to his estate, at the sum of $49,085.94.
At the time of the death of Wiley, Westerman had no property. It has been shown, on a reference to a commissioner, that he received from the estate of Wiley, at various times, in addition to the bank stock he transferred to Mrs. Westerman, amounts aggregating $51,383.65, and disbursed for repairs on the residence, satisfaction of small bequests made by the will, debts due from the estate, funeral expenses, taxes, insurance and medical and hospital bills of the widow, sums amounting to $9,128.33, leaving $42,255.32. For a time, he kept two bank accounts, one executorial and the other individual, but in making his deposits, he did not regard the sources from which the money had been derived. In numerous instances, he divided funds of the estate between the two accounts and made deposits in both, and drew checks on them indiscriminately. He engaged extensively in oil and gas production, trading and speculation and other business, using for such, purposes, the estate that had come into his hands, as executor of Wiley's will, for the benefit of his wife as residuary legatee. He created large indebtedness in these enterprises, occasioning the execution to banks and individuals, of many notes, some of which the wife endorsed. She must have known he had not fully accounted to her for her interest in the estate and that he was making use of the same as if it were his own, for he had commenced these operations without means of his own.
The commissioner to whom the cause was referred reported indebtedness of the estate of C. G. Westerman to the estate of Beulah Westerman, in the sum of $28,433.40, two-thirds of the amount traced into his hands and undisbursed, the other third being deducted as having vested in him as a distributee of his wife's estate. Sustaining numerous exceptions to this finding, filed by...
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