Nicholas' Estate, In re

• Decision Date: 02 October 1956
• Docket Number: No. 10761,10761
• Citation: 94 S.E.2d 452,142 W.Va. 80
• Court: West Virginia Supreme Court
• Parties: In re the ESTATE OF Amanda NICHOLAS, Deceased.

Page 452

94 S.E.2d 452

142 W.Va. 80

In re the ESTATE OF Amanda NICHOLAS, Deceased.

No. 10761.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 12, 1956.

Decided Oct. 2, 1956.

Syllabus by the Court.

This Court on writ of error or appeal, in the first instance, will not entertain and decide a nonjurisdictional question not passed on by the circuit court.

A. G. Mathews, Grantsville, for plaintiff in error.

McCluer, Davis & McDougle, C. Edward McDonough, Parkersburg, for defendant in error.

RILEY, Judge.

E. R. Staats, Administrator of the Estate of Amanda Nicholas, deceased, prosecutes this writ of error to an order of the Circuit Court of Wood County, entered on December 27, 1954, dismissing such administrator's appeal from an order of the County Court of Wood County, entered on January 4, 1954, on the ground, as recited in the order of the circuit court of December 27, 1954, 'that the appeal was not perfected as required by law.'

This proceeding involves the action of the County Court of Wood County in confirming the report of the Honorable William E. Adams, Commissioner of Accounts for Wood County, dated December 5, 1953, which report, inter alia, found that the husband of the decedent, Amanda Nicholas, was entitled to recover the sum of $745.89 from the estate of his deceased wife, for the reasonable expenses of decedent's funeral and burial, which C. P. Nicholas, the decedent's husband, had voluntarily paid from his own funds.

The preliminary report of the commissioner of accounts, dated December 5, 1953, lists among the common claims against the estate the claim of 'C. P. Nicholas Reimbursement for funds advanced $745.89'. Immediately following the list of the common claims, including the claim of C. P. Nicholas, the commissioner of accounts made the following note:

'Note: The claim of C. P. Nicholas was filed March 31, 1952, and exceptions were taken to the allowance of said claim by certain heirs of this estate, and after due consideration by your Commissioner, said claim was allowed. A Report of the proceedings before your Commissioner with respect to this claim is herewith filed with the Clerk of the County Court of Wood County, West Virginia.'

To the claim of C. P. Nicholas for reimbursement for his wife's funeral and burial expenses in the amount of $745.89, Gordia E. Pyles and F. M. Pyles, decedent's sons by a former marriage, and Thelma Pyles Thorn, decedent's daughter by a former marriage, filed affidavits, which were in the nature of counter-affidavits, to the affidavit in support of the claim of decedent's husband, C. P. Nicholas.

The final report of the commissioner of accounts, dealing specifically with the claim of C. P. Nicholas, dated December 5, 1953, contains the following notation as to a purported agreement, evidently entered into by counsel for the parties interested in the allowance or disallowance of C. P. Nicholas' claim:

'* * * and at which time a hearing was had, and it was agreed by the parties hereto that the matters involved with respect to this claim were purely a question of law and that the Commissioner should make a finding thereof and each side was given time to file memoranda in support of their position to assist the Commissioner.'

The finding of the commissioner of accounts is in the words following:

'Your Commissioner finds that C. P. Nicholas is entitled to recover the sum of Seven Hundred Forty-Five and 89/100 ($745.89) Dollars from the Estate of Amanda Nicholas, and, therefore, so finds in favor of C. P. Nicholas.'

In the final report of the commissioner of accounts, dated December 5, 1953, which deals specifically with the claim of C. P. Nicholas, the commissioner of accounts held that '* * * although said claim was filed after the normal period for filing such claims had expired, that it is the law that the estate of a decedent is liable for the reasonable expenses of her funeral and burial and that certainly it is applicable where by the express terms of her Will it provided, that funeral and burial expenses shall be paid out of her estate', and further the commissioner of accounts found that the funds in the administrator's hand had not been disbursed by him, and 'that a failure to file such a claim as this [that is, the claim of decedent's husband] within the prescribed time shall not be a defense available to the legatees or devisees of the estate and it is, therefore, felt that such a defense would not be available to the legatees and devisees in the instant case, and, therefore, this claim should be allowed.'

This record discloses that at a regular session of the County Court of Wood County, the court, on January 4, 1954, confirmed by an order the reports of the various commissioners of account in the following language: 'All of which were confirmed and ordered to be recorded, including one by Commissioner William E. Adams, on the estate of Amanda J. Nicholas in which exceptions had been filed. And exceptions not being well founded, it is ordered that the Report of the Commissioner be confirmed, approved and recorded.'

This record further discloses that at a continued session of the same term of the county court, held on January 12, 1954, an order was entered showing that claimant, Edgar R. Staats, administrator of the estate of Amanda Nicholas, deceased, moved the court to set aside the order confirming the report of the commissioner of accounts of January 4, 1954, and that the county court overruled such motion, and specifically confirmed its action on January 4, 1954, which order recites 'to which the said Edgar R. Staats excepts.'

This Court has held in the case of Miller v. Miller, 117 W.Va. 138, 184 S.E. 246, 248, Judge Kenna writing the opinion, that: 'If the record had been fully made up and certified by the county court, there would be no necessity for bills of exception in the circuit court.'

The pertinent statutes governing the procedural difficulties presented by this record, which involve the question whether the administrator has protected the estate in the proceedings before the commissioner of accounts and in the county court, are Code, 44-2-18, and Code, 44-2-19. The former statute reads:

'After preparing his report of claims the commissioner shall give notice thereof, either verbally or in writing, delivered personally or by mail, to all parties interested or their attorneys, and hold the report and the evidence taken in connection therewith in his office for ten days for the examination of parties interested. Any party may inspect such report and evidence and file exceptions thereto before said commissioner; and the commissioner, in all cases, shall return with his report all the evidence taken in connection with any claim listed in such report, and the exceptions, if any, taken to the report, and shall submit such remarks upon the exceptions as he may deem pertinent. After the expiration of such ten days the commissioner shall return the report, evidence, exceptions and remarks to the county cou...