Peters v. Kanawha Banking & Trust Co.
| Decision Date | 30 March 1937 |
| Docket Number | 8486. |
| Citation | 191 S.E. 581,118 W.Va. 484 |
| Parties | PETERS et al. v. KANAWHA BANKING & TRUST CO. et al. |
| Court | West Virginia Supreme Court |
Submitted February 24, 1937.
Rehearing Denied June 25, 1937.
Syllabus by the Court.
1. Where a decedent, by will, disposes of an estate consisting almost entirely of real estate, and makes pecuniary bequests which, with funeral expenses, costs of administration, and debts will consume the greater part of the estate, and the carrying out of the purposes of the will necessarily requires the sale of such real estate, and power is given executors to make sale thereof, such power of sale is mandatory, and operates to effect an equitable conversion of said real estate into personalty, and creates a trust to be administered by the executors, for the purposes of the will even though the power of sale may be in its terms discretionary.
2. Where a power of sale is mandatory, and serves to effect an equitable conversion of real estate into personalty, and the creation of a trust to be administered by executors, such executors are entitled to collect, and must account for, the rents and profits of such property accruing from the death of the testator to the time when the same is sold.
3. A residuary devise and bequest of the "rest, residue and remainder" of an estate, following general legacies will not, in the absence of express provisions in the will to the contrary, be paid, until such general legacies are satisfied in full.
Appeal from Circuit Court, Kanawha County.
Suit by Martha M. Peters against the Kanawha Banking & Trust Company, and Hazel T. Martin, executors of the will of Caroline Heeter, and Hazel T. Martin in her own right. From the decree, the plaintiffs appeal, and defendant Hazel T. Martin files cross-assignments of error.
Affirmed in part, and reversed and remanded with directions in part.
Lilly & Lilly and David G. Lilly, Jr., all of Charleston, for appellants.
Lively, Lively & Stambaugh, Price, Smith & Spilman, J. M. Woods, and B. J. Pettigrew, all of Charleston, for appellees.
Caroline Heeter died, from injuries sustained in an automobile accident, on September 9, 1929. At the date of her death, she was the owner of valuable real estate in the city of Charleston, and a small amount of personal property. On May 29, 1929, she executed a will, by which she first directed payment by her executors, of all her just debts and funeral expenses, and next bequeathed to her daughter, Hazel T. Martin, all of her household and kitchen furniture, except a piano; then followed pecuniary bequests of $4,000 to Martha M. Peters; $4,000 to Caroline P. McClintic; $10 to William B. Heeter; $500 to Willis J. Heeter; $500 to Della Chaney Heeter; $4,000 to Zula Thompson; and $500 to Milo L. Heeter. These bequests aggregated $13,510, and were made to sons and daughters of the testatrix, except in the case of Della Chaney Heeter, she being the wife of a son of the testatrix. The last three clauses of the will are as follows:
"Tenth: All the rest, residue and remainder of my estate, both real and personal, of every kind and description and wherever situated, which shall belong to me or be subject to my disposal at the time of my death, I give, devise and bequeath to my daughter, Hazel T. Martin, absolutely and in fee simple. This bequest is made in addition to the love and affection which I bear to my said daughter also for the reason that my said daughter has expended a considerable amount of money in the improvement and making repairs upon my real estate for which she has not been compensated.
Eleventh: In case of my executors hereinafter named shall find it necessary or convenient in the settlement of my estate and payment of the legacies and devises hereinbefore set forth, I authorize and empower my said executors to sell and convey any or all of my real estate and personal property, with full power and authority to make, execute and deliver proper deeds or other instruments of writing necessary or proper to transfer and pass the title to the purchasers, with the right to collect and receipt for the purchase money for the same, without any obligation on the part of any purchasers of said property, or any parts thereof, to see to or in anywise be liable or bound for the application thereof.
Twelfth: I hereby constitute and appoint the Kanawha Banking & Trust Company, a corporation, of Charleston, West Virginia, and my daughter, Hazel T. Martin, to be executors of this my Last Will and Testament."
There was an appraisal of the estate from which it appears that the personal property was valued at $265.16, represented by money in bank, and the real estate at the sum of $15,000. It appears that the testatrix was indebted in about the sum of $2,000 at the time of her death, and, of course, consideration must be given to costs of administration and funeral expenses.
The executors qualified and became responsible for the estate intrusted to them by the will. The real estate mentioned in the will consists of a lot on Quarrier street, in the city of Charleston, on which is located a residence and apartment building, and rents have been received therefrom during all of the time subsequent to the death of the testatrix. These rents have been collected by Hazel T. Martin, the residuary devisee and legatee, and one of the executors, and the question of their disposal is one of the vital issues in this case. The executors, and Hazel T. Martin, have paid interest on the indebtedness of the testatrix, have expended money in the payment of taxes on her real estate, and for repairs thereto; funeral expenses amounting to $703.28 were paid by Hazel T. Martin, and she also paid the sum of $200 to Milo J. Heeter, one of the legatees.
Zula Thompson, one of the legatees named in the will, was the driver of the automobile, from the operation of which, Caroline Heeter lost her life, and a question arose as to the liability of the said Zula Thompson to the estate of the decedent for negligence in connection with her death. After extensive correspondence between the executors of the estate and Zula Thompson and her counsel, a release was finally executed by all the heirs at law of Caroline Heeter, releasing the said Zula Thompson from such alleged liability. About the time this release was executed, Zula Thompson assigned to Hazel T. Martin the legacy of $4,000 to which she was entitled under the will, and the right to such legacy is now claimed by the assignee.
Notwithstanding the power vested in the executors to sell the real estate of the decedent, no sale was made. From time to time efforts were made to procure loans on said property, sufficient to pay the debts and at least a part of the legacies, but these efforts failed. Some eight months after the failure of the last effort along this line, this suit was instituted.
The purpose of this suit, instituted early in 1933 by Martha M. Peters, Caroline P. McClintic, William Heeter, Willis J. Heeter, Della Chaney Heeter and Milo L. Heeter, legatees, against the Kanawha Banking & Trust Company and Hazel T. Martin, executors of the will of Caroline Heeter, and Hazel T. Martin in her own right, was to secure an accounting from the said executors, and have a sale of the real estate of which Caroline Heeter died seized, and secure the payment of the debts of her estate and the legacies bequeathed by her to the plaintiffs. The principal points raised in the litigation affect the right of Hazel T. Martin to the Zula Thompson legacy, and her right to appropriate the rents derived from the real estate of the decedent. There are other minor questions raised on the record, but a decision on the two points mentioned will, in a large measure, dispose of the other questions.
The court below, by its final decree entered upon the report of a commissioner, ascertained and decreed certain debts against the estate; the pecuniary legacies mentioned in the will, with interest from the death of the decedent, in effect, relieved the executors from any duty to account for rents accruing after the death of Caroline Heeter, received from real estate owned by her, and directed sale of such real estate by special commissioners appointed for that purpose. From this decree, the plaintiffs appeal.
Hazel T. Martin, individually, assigns cross-error in her brief: One, based on the failure of the court below to sustain her demurrer to the bill of the plaintiffs because of the joinder of two separate causes of complaint; two, failure to decree to her money expended in improvement of the real estate of the decedent; and, three, the failure of the court to abate the legacies provided for in the will to the extent necessary to provide for the payment of the sum claimed by her to be due on account of improvements to real estate mentioned in the will.
The court below was clearly right in decreeing to Hazel T. Martin the Zula Thompson legacy. While it is true that under Code 55-7-6, the executors were the only persons who could have maintained a suit to recover damages for the death of Caroline Heeter, it is likewise true that the parties who would have benefited from any recovery are the beneficiaries named in the statute, the heirs at law of the decedent. Even if there had been a recovery, the amount thereof could not have been administered by the executors, as a part of the estate disposed of by the will, but would have been paid by them to such heirs at law, independently of the will. These heirs at law having released Zula Thompson from liability, she could have asserted such release as a defense against any suit instituted against her by the executors, on the claim of liability so...
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