Seabright v. Seabright et al

• Decision Date: 18 September 1886
• Citation: 28 W.Va. 412
• Parties: Seabright v. Seabright et al
• Court: West Virginia Supreme Court

28 W.Va. 412

Seabright

v.Seabright et al

Supreme Court of Appeals of West Virginia.

Submitted June 4, 1886.

Decided September 18, 1886.

1. The principles, which control the mode of proceeding, when the accounts of a personal representative settled ex parte returned and recorded in the proper court are to be surcharged and falsified, are the same as those, where a stated account is to be surcharged and falsified, except when there has been fraud in making the settlement, which is the basis of the stated account, (p. 432-) 2. The bill in such case must set forth one or more items, whereby the plaintiff seeks to surcharge or falsify such account or ex parte settlement, unless there be errors or mistakes on the face ot* the account or of the ex parte report or settlement filed with the bill; such apparent errors need not be specified in the bill. If the bill is defective in these respects, it should be dismissed unless amended. But if such bill be not demurred to, and the court should improperly make a general order of reference directing a settlement of the accounts of the personal representative, instructing the commissioner to regard the ex parte settlement as prima facie correct subject to be surcharged and falsified by either party, and this be legally done by the plaintiff, while the cause is before the commissioner, and a report be accordingly made, such cause ought not to be afterwards dismissed for such defects in the bill. (p. 440.)

3. When an order of reference is made in auy suit to surcharge and falsify the ex parte settlement of a personal representative, it should be a general order of reference, such as is above named, and not a restricted order of reference confined only to those items, which have been specified in the bill as the subjects of sur charge and falsification, (p. 441.)

4. If the plaintiff does not wish to be confined to those items of sur-

charge and falsification named in the bill and the errors on the face of the ex parte settlement, he ought properly to file with the commissioner a written specification of any additional items of surcharge or falsification, on which he proposes to rely, so as to give the personal representative information as to all the items of the ex parte settlement, which it is proposed to surcharge or falsify. The personal representative need file no written denial of these grounds of objection alleged there by the plaintiff; but they shoud be regarded by the commissioner as denied by him, unless he admits their justice. In like manner the personal representative should be permitted by a written statement to surcharge or falsify the ex parte settlement, and it should be regarded, just as the written specification of errors filed with the commissioner by the plaintiff is regarded, (p. 441.)

5. If the plaintiff or defendant fails to file such written specifications

of error with the commissioner, but the parties proceed to take evidence With reference to such additional errors, as if such written specification of error had been filed, or if such evidence had been taken without objection in the cause itself either before or after the order of reference, and it is apparent, that neither party has been taken by surprise, and the commissioner in his report corrects such errors, and his report is not excepted to, because such written specifications of error were not filed, the court should act upon such report, as if such written specifications of error had been filed with the commissioner, unless it be proven to the court, that in point of fact one of the parties was surprised by the failure of the other to file such written specification of error. In such case anil not otherwise the court should because of such fail" ure to file such written specifications refer the cause back to the commissioner to inquire into such alleged errors. But if exceptions are filed in proper time to such report, because no such written specification of errors were filed, the court may either refer the cause back to the commissioner for this cause only without examining the report, or it may inquire, if it think proper, into the question, whether the exceptor has in point of fact been surprised or not, and, it it find that he has not, may act upon the report, as though the proper written specifications of error had been filed with the commissioner, (p. 442.)

6. If there be no apparent errors on'the face of the ex parte settlement, and the answer denies all errors alleged in the bill and makes no statements showing, that there are no other errors in the ex parte settlement, and the plaintiff fails to produce evidence establishing any error in the ex parte settlement, the court should not refer the cause to a commissioner but should dismiss the bill; but this Court would not reverse a deoree, which was properly made on a commissioner's report, for the sole reason, that the cause in the condition, in which it was, when the order of reference was made to the commissoiner, ought not to have been referred to him, (p. 443.)

7. In such a suit the executor or residuary legatee can not demur to the bill, because a specific legatee was improperly made a co-defendant, (p. 446.)

8. Though an interested party files before a county court an exception to an ex parte report and settlement of an executor's accounts, and, before the court acts upon such exception, withdraws it, and the ex parte settlement is then confirmed by the county court, such party may nevertheless file his bill to surcharge or falsify such exparte settlement because of this error only. (p. 447.)

9. If in answer to a bill of this sort the executor claims, that just prior to his death the testator gave him a large number of bonds and notes, which he admits had been the property of the testator prior to such alleged gift, the burden of establishing such claim is on the executor, (p. 450.)

10. A cause made by an amended bill filed at rules must be regularly matured for hearing, just as the cause made by an original bill must be; but if such amended bill was utterly useless and in no manner could affect the the final decree, this Court would not reverse such decree, because such useless amended bill was not matured before the final hearing of the cause, (p, 4-54.)

11. Within the meaning of the act of March 27. 1882, ch. 160 §23, being an amendment of ch. 1 HO sec. 23 of the Code of W. Va., a party testifies in his own behalf, when his deposition is used in a chancery cause, not at the time, when it was actually taken; and though such witness was competent to testify, when his deposition was taken, bis evidence ought to be excluded, if he was incompetent to testify, when such deposition is proposed to be used in the cause, (p. 460.)

12. This statute as well as the sec. 25 of ch. 130 of the Code in providing, that no party as to certain transactions shall be examined against certain other persons, does not mean by against on opposite sides of a suit but as having opposing interests in the suit whether on the same side as co-plaintiffs or co-defendants or on opposite sides as plaintiffs and defendants, (p. 465.)

13. In designating the persons, against whom a party to a suit shall not testify in his own behalf as to certain transactions, by the words next of kin the law does not intend simply the nearest blood-relatious of the decedent but any distributee, as for instance the decedent's widow, (p. 465.)

14. In the meaning of ch. 160 of Acts of 1882 by the word survivor used to designate the persons, against whom an interested person shall not testify in his own behalf as to certain transactions, is intended any person, who by reason of his surviving the deceased would become as such survivor interested in the subject of controversy, as for instance a widow, who claimed as distributee a share of her husband's estate, when the question in controversy was, whether her husband in his lifetime had given away a portion of his personal property to one, who was his executor, or whether such personal property was her husband's at the time of his death, (p. 467.)

15. The burden of proving a gift of personal property by a decedent is much heavier on the claimant, when the alleged gift is a gift causa mortis than when the gift is one inter vivos. When the gift claimed is a gift causa mortis, it must be proven by strong and clear evidence, (p. 470.)

16. Though a bond or note be delivered to a person, and the donor signs an endorsement on it in these words: M For value received I assign all my right to title and interest in this bond or note to donee" naming him; yet such gift may be shown by the surrounding circumstances to have been a gift causa mortis and not a gift inter vivos, (p. 475.)

17. If such a gift is of a very large amount and nearly the whole of the donor's personal estate, whether the gift be inter vivos or causa mortis, the court would require the most clear and satis factory proof of the gift as well as of the delivery of the bond or note; and it would require much less evidence from the surrounding circumstances to show, if the gift was established, that it was a gift causa mortis and not a gift inter vivos, (p. 481.)

W. P. Hubbard for appellant.

B. B. Dovener for appellee.

Statement of the case by Green, Judge:

This is a chancery suit instituted in 1876 in the circuit court of Ohio county by Louisa Seabright, the widow of Louis Seabright, against Charles W. Seabright, his executor, and his residuary legatees to surcharge and falsify three ex parte settlements of his executorial accounts, because in those accounts the executor was not charged with certain bonds and notes given to Louis Seabright in his lifetime, which represented the purchase-money of several parcels of land which he sold. The facts appearing from the pleadings, exhibits and depositions filed in the cause are as follows:

In October, 1869, one Hadley recovered a judgment against Louis Seabright in the circuit court of Marshall county for $3,651.51. During the years 1...