Poteet v. Imboden

• Decision Date: 27 January 1914
• Parties: POTEET v. IMBODEN ET AL.
• Court: West Virginia Supreme Court

80 S.E. 958

73 W.Va. 567

POTEET v. IMBODEN ET AL.

Supreme Court of Appeals of West Virginia.

January 27, 1914

Submitted January 14, 1914.

Syllabus by the Court.

In a suit by an assignee for an accounting of certain coal royalties, a part of the personal estate devised to the assignor and widow for life, subject to debts, with remainder in equal proportion to plaintiff, a son, and another son named also as executors of the will, with power given them to manage and control said personal estate, the remaindermen in their individual rights and as executors of said will are necessary parties to such suit, and because of their absence the bill is fatally defective on demurrer.

Appeal from Circuit Court, Fayette County.

Suit by L. E. Poteet against G. W. Imboden and others. From decree for plaintiff, defendants appeal. Reversed and remanded.

Dillon & Nuckolls, of Fayetteville, for appellants.

Maynard F. Stiles, of Charleston, for appellee.

MILLER P.

The bill is for an accounting by the executors of Harvey for certain coal royalties in which plaintiff claims a one-fourth interest, and for an injunction restraining said executors from instituting or prosecuting any suit or suits against him for the collection of certain of his notes held by said estate, and also from transferring said notes, and certain notes of other persons also owned by said estate, and for general relief, and for the appointment of a special receiver.

As a basis for the relief prayed for it is alleged that plaintiff is owner and holder by assignment from his mother, Francis J Pegram (formerly Poteet), on October 15, 1910, of all her rights to the personal estate devised to her by the will of his father, the late John Poteet, deceased, which will it is alleged provided as follows: "I give, devise and bequeath to my beloved wife, Francis J. Poteet, during her natural life, all my personal property, consisting of all stock, household and kitchen furniture, bonds, notes, money and other personality of whatever description I may die seized after the payment of my debts and funeral expenses to be used, held and enjoyed by her during her life, and at her death, the remainder to be divided equally between my sons George A. Poteet and Lucien E. Poteet;" and thereby he also provided: "And I do nominate and appoint my two sons, Geo. A. Poteet and Lucien E. Poteet, to be my executors of this my last will and testament, empowering and directing them to sell and convey the lands devised to be sold and to manage and control the personal estate herein demised to my wife, Francis J. Poteet."

Among the personal assets of said testator, and covered by said devise and claimed by plaintiff by said assignment, and whose rights thereunder are sought to be enforced by him against the executors of said Harvey, is the following contract:

"Article of Agreement. Made and entered into this 25 day of August, A. D. 1893, between Morris Harvey, party of the first part, and John Poteet, party of the second part, all of the county of Fayette, State of West Virginia.

Witnesseth That Whereas, in the Original contract of purchase by the said Harvey of the said John Poteet's half interest in the minerals and coal of the two hundred acres tract purchased by the said Harvey from John and George Poteet, it was...