Reinhardt v. Reinhardt
| Decision Date | 02 December 1882 |
| Citation | 21 W.Va. 76 |
| Parties | REINHARDT. EX'R, v. REINHARDT et al. |
| Court | West Virginia Supreme Court |
Submitted Jun. 9, 1882.
1. Section 7 of chapter 86 of the Code, confers upon the personal representative of a decedent the right to bring a suit in equity, as in said section provided, either before or after the expiration of six months from his qualification but he cannot bring such suit after six months, if any creditor has, before such representative commences his suit, filed a creditor's bill as provided for in said section. (p. 79.)
2. A husband conveys real estate to a trustee to secure the payment of a debt and the wife unites in such conveyance after the death of her husband, a creditor's bill is filed to subject the real estate of said husband to the payment of his debts and the said trust property is sold under a decree in said suit. Held:
The widow is not entitled to dower in the property so conveyed or the proceeds thereof, unless there is a surplus after paying said trust debt and such costs as are properly chargeable to the fund arising from the sale of the property so conveyed. (p. 80.)
3. A husband dies seized of real estate and owing debts exceeding the value of all his estate, personal and real, leaving a widow and infant children. The widow as guardian of said children files a declaration of homestead on a part of said real estate after the death of the husband. Held:
That the widow and children took said real estate subject to the liens and equities against it in the hands of the husband and said declaration does not exempt it, or any part of it from the debts contracted by the husband and due from his estate. (p. 81.)
Appeal from and supersedeas to a decree of the circuit court of the county of Ohio, rendered on the 29th day of December, 1880, in a cause in said court then pending wherein Henry Reinhardt's executor was plaintiff and Mary Jane Reinhardt and others were defendants, allowed upon the petition of the said Mary Jane Reinhardt.
Hon. Thayer Melvin, judge of the first judicial circuit, rendered the decree appealed from.
SNYDER, JUDGE, furnishes the following statement of the case:
Henry Reinhardt departed this life in December, 1878, possessed of a very inconsiderable personal estate, but seized of a house and lot on Coal street, in the City of Wheeling, and two lots of land on Glenn's run in Ohio county, one of ten and the other of about nine acres. On the two Glenn's run lots he in his lifetime gave a trust deed to secure the payment of six hundred and fifty-nine dollars and twenty-five cents with interest from March 5, 1878, which was recorded on the same day and also another trust deed on the said nine acres to secure the payment of a note of six hundred and fifty dollars, dated March 11, 1878, with interest from date and payable five years after date. This deed was recorded April 1, 1878. In both these deeds his wife, Mary J. Reinhardt, united in due form. The aggregate of the debts due from his estate, including the two trust debts just mentioned, was about two thousand two hundred dollars. He left a widow the said Mary J. and four infant children. Ferdinand Reinhardt, the holder and owner of said two trust debts, qualified as his executor, and on October 31, 1879, brought this suit in his own right and as such executor in the county court of Ohio county to settle his testator's estate, ascertain the amounts and priorities of the debts and sell the real estate to pay the same, making the said widow, infant children and creditors of the testator defendants to the bill.
The widow filed her answer, stating therein that she was entitled to dower in the real estate of her husband and that she was willing and desired to take a sum in gross in lieu of dower in kind; that she had been appointed guardian for the infant children of her husband, and for herself and as such guardian had recorded in the clerk's office of said county, on January 15, 1880, a declaration and claim of homestead on said house and lot on Coal street in the City of Wheeling, and insisted that she as such widow and guardian was entitled to hold the same exempt from the debts of her husband in pursuance of article 6 section 48 of the Constitution and of chapter 193 of the Acts of 1872-3 of this State. The infant defendants by their guardian ad litem, demurred to, and also answered, said bill. The court referred the cause to a commissioner to settle the accounts of the executor, to have the creditors convened, the debts and their priorities and the value in gross of the widow's dower in the real estate of the testator ascertained. The commissioner made and filed his report, showing that the personal estate did not exceed two hundred dollars, all of which was allowed the widow as exempt from the debts, also the amounts and priorities of the debts, and stating that the widow was entitled to 68.538 per cent. of the one third of the proceeds of the real estate in lieu of her dower after deducting the taxes and liens thereon and a proper proportion of the costs. This report was by a decree made July 3, 1880, confirmed without exception, the demurrer to the bill overruled and a sale of the real estate directed. The sale was made by a commissioner, on August 14, 1880, and he filed his report which shows that the plaintiff purchased the ten and nine acre lots on Glenn's run--the former at eight hundred dollars and the latter at four hundred and twenty-five dollars, and that Henry Bronson purchased the house and lot in Wheeling at eight hundred dollars, and that the costs of sale were one hundred and twenty-eight dollars. The defendant Mary J. Reinhardt, widow, excepted to said report and the confirmation of the sale, first, because the decree of sale was erroneous, and second, because the homestead claimed in her answer had not been set apart for her and the infant children.
The court by its decree, made Sept. 24, 1880, overruled said exceptions and confirmed said sale and report; and after reciting that the trust-liens, with three fourths of the costs of suit and sale, exceed the proceeds of sale from the said ten and nine-acre lots, decided the widow was not entitled to any dower therein, but directed that she be paid one hundred and sixty-seven dollars and two cents in lieu of her dower in the Coal street house and lot, that being 68.538 per cent. of one third of the proceeds of the said house and lot after deducting the taxes thereon for 1880 and fifty-four dollars and sixteen cents being the one fourth of the expenses of sale and costs of this suit, and ordered a writ of possession to...
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