Plaintiff v. Hooper's Ex'rs Et At. *

• Citation: 29 W.Va. 276
• Parties: Hooper et al. v. Hooper's Ex'rs et at.* (Woods, Judge, absent.)
• Decision Date: 25 November 1886
• Court: Supreme Court of West Virginia

29 W.Va. 276

Hooper et al.

v.Hooper's Ex'rs et at.^*

(Woods, Judge, absent.)

Supreme Court of Appeals of West Virginia.

Submitted September 8, 1886

Decided November 25, 1886.

1. Commissioner's Report Appeal,

A decree, which sustains certain exceptions to a commissioner's report and re-commits the cause to the same or another commissioner, is not appealable, (p. 283.)

2. Commissioner's Report Exceptions.

Items or matters excepted to in a report of a commissioner, which by the court is re-committed, will not be open to judicial investigation in acting upon the report made upon such re-commitment, unless such items or matters are excepted to in the latter report, (p. 283.)

3. Executors Wills Appraisement Bill.

Executors are to be charged with the items in the appraisement bill, unless they can show, that the property did not belong to the testator at the time of his death, or in some other way account for the disposition of such items, (p. 284.)

4. Executors Wills Personal Property of Testator Busi-

ness of Testator. The executors are to be charged with the personal property owned by the testator at the time of his death, which came or ought to have come into their hands; and they will not be permitted to carry on the business, in which the testator was engaged at the time of his death, and charge the estate with any loss occasioned thereby, or to mix up the accounts of such business with their executorial accounts, (p. 284.)

5. Executors Wills Cash Appraisement.

Executors must be charged with the cash in the testator's safe at the time of his death, which came into their hands, and will not he allowed to rely on the appraisement for such items, which is much less than the cash actually received, (p. 284.)

6. Appraisement Wills Evidence.

An appraisement of property in Maryland by appraisers appointed in West Virginia, where the will was admitted to probate, will not be prima facie evidence of the amount and value of such property, (p. 288.)

7. Executors Wills Sureties.

Where a testator in West Virginia in his will required his executors to sell all his personal property," wherever situated," and a tract of land owned by him in Illinois and dispose of the proceeds, as directed in the will, and the testator had large personal property in Maryland, and there were no letters of administration issued in that State nor in the State of Illinois, and the executors took charge of the property in Maryland and disposed of it by selling a portion there and bringing the residue into West Virginia and disposing of it here, and sold the Illinois land and received the proceeds, they and their sureties will in West Virginia be required to account for such property and proceeds, (p. 29G.)

8. Executors Wills Principal and Surety.

Where executors execute a joint bond, they stand as to each other in the relation of principal and surety, each as principal quoad his own acts and as surety quoad the acts of the other, (p. 299.)

Martin & Woods for appellants.

J. W. Mason and A. F. Raymond for appellees. Johnson, President:

This is a suit in chancery instituted in the Circuit Court of Taylor county and removed to Marion county, the object of which was to surcharge and falsify the accounts of Charles E. Hooper and W. S. Hooper, the executors of the will of John W. Hooper, deceased, and to settle the said accounts and, the executors being insolvent, to obtain a decree against the sureties on the bond of the executors for the devastavit of the executors. There had been three ex parte settlements made. The bill charged, that many of the credits therein allowed, specifically setting them out, were improperly allowed, and quite a large amount of property, specifically deBribing it, had not been charged to them. Among other things the bill alleged, that the testator had rented a hotel in Cumberland, Maryland, called the "Revere House," which he had furnished at large expense, and which he had put in charge of his son, Charles E. Hooper, to be kept by him; and that the executors were liable to account for that property to a much larger degree than they had accounted.

The answer of Charles E. Hooper averred, that the Revere House did not belong exclusively to the testator; that only one half thereof belonged to him; that about May, 1870, the testator and his son, the respondent, commenced operating said house as equal partners; that the house belonged to

one Michael, from whom it was leased; that "it was

furnished by respondent and testator, respondent paying for some things, testator paying for some, and other things being paid for out of the proceeds of the business; that said business was carried on in the name of J. W. & C. E. Hooper; and that all property there belonged to them equally。'

I do not pretend to set out all the different allegations and charges of the bill. It exhibits the will of J. W. Hooper, in the first clause of which he provided, that all his " personal property, wherever situated, together with a tract or parcel of land now owned by me and situate in the State of Illinois be sold either at public auction or private sale under the direction of my wife, Sarah; and the proceeds thereof I will and bequeath one third to my beloved wife, Sarah, and the remaining two thirds to be divided equally among my children." He left Sarah, his widow, and Charles E. and W. S. Hooper, the executors, and Rose P. and Harry B. Hooper, his children. The bill was filed by Harry B. Hooper and his sister Rose P. Sullivan against the said Charles E. and W. S. Hooper in their own right and as executors and their sureties John Doonan, George Brinkman and Granvill E. Jarvis on their executorial bond, and also Sarah Hooper and G. L.

B. Fetterman and. The original bill alleges,

that a new bond was executed on the 6th day of June, 1873, by the parties to the original bond, except G. E. Jarvis, William A. Turner executing in his stead; that Turner is dead; and plaintiffs insist, that the only effect of said Turner's bond was to give additional security, and that the obligors in the original bond were not nor were any of them relieved by the giving of the new bond. Turner's administrator was made a defendant and answered the bill alleging the insolvency of Turner at the time of his death. The executors answered admitting many of the allegations of the bill and denying others. All the defendants except Brinkman answered the bill. Before any depositions were taken the cause by consent of the parties was referred to one of the commissioners of the court " to audit, state and settle the executorial accounts of C. E. Hooper and W. S. Hooper, and to ascertain and report what debts, if any, are still outstanding and due from said testator; and what personal estate of said testator came into the hands of said executors to be administered, and what disposition they have made of the same, to ascertain and report the value of said Illinois land at the time of said testator's death, and whether the same has ever been sold and, if it has, to whom, and what disposition has been made of the proceeds of the sale thereof, together with any other matters deemed pertinent by himself, or that is required by any of the parties."

M. H. Dent, commissioner, made the report, by which he ascertained, that the executors were indebted to the estate in the sum of $2,015.74.

To this report the plaintiffs filed twenty-four exceptions; and the defendant Sarah Cooper tiled three exceptions. Many depositions were taken before commissioner Dent, which are returned with his report. The court sustained seventeen of the plaintiffs' exceptions and did not pass upon the other exceptions and referred the cause to commissioner Z. M. Cochran to audit, re-state and settle the executorial accounts according to the requirements of the former decree of reference with leave to the parties to re-examine any of the parties, whose depositions had been taken upon matters, upon which they had not before testified. Cochran made his report, that the executors were indebted to the estate in the sum of $4,509.70.

To this report the plaintiffs and defendant Sarah Hooper filed fifteen exceptions; and Sarah Hooper alone filed one, W. S. Hooper and Whitescarver, his assignee, filed four, and the defendants Brinkman and Doonan eleven.

On the 6th of August, 1884, the court by its decree sustained some of the exceptions and overruled others and again referred the cause to another commissioner, W. R. D. Dent, to re-state the accounts of said executors according to the provisions of the original decree of reference and of the decree then pronounced. W. R. D. Dent reported the said executors indebted to the estate in the sum of $9,130.32. He also reported, that of the assets Charles E. Hooper received $10,748.41 and W. S. Hooper $4,430.43, and says: "It is impossible to make a statement of the disbursements of each, as the receipts are in the joint names of 0. E. & W. S. Hooper, executors; and your commissioner from all the evidence in the cause is of the opinion, that both of them are jointly liable, and neither entitled to any distributive share in said estate, and as the proof shows, that they are both insolvent, he therefore does not even guess at a settlement between them, as the best settlement from data in this cause would be a mere conjecture. As to the Revere House property the commissioner reports, that "from the pleadings and evidence in the cause he is of the opinion, that John W. Hooper, deceased, in April, 1870, opened a hotel in Cumberland, Maryland, and placed his son, Charles E. Hooper, in charge with the understanding and agreement, that they would divide the profits, in other words, placing his capital against his son's labor. Then follows a. settlement of the assets and liabilities at the date of the decedent's death," that came into the hands of said

Charles E. Hooper as surviving partner, to wit:

To assets sold at Cumberland............................................. $1,879 70

" appraised value...