Shahan's Adm'r v. Shahan's Heirs
| Decision Date | 15 December 1900 |
| Citation | 37 S.E. 552,48 W.Va. 477 |
| Parties | SHAHAN'S ADM'R v. SHAHAN'S HEIRS. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. A court of equity has the authority to sell the incumbered real estate of a decedent, upon a bill filed by the administrator for the purpose of paying decedent's debts, free from the incumbrances, and satisfy such incumbrances out of the proceeds of sale.
2. Ordinarily, the death of a borrowing member of a building association stops the imposition of fines for nonpayment of dues, interest, and premium, and also ends membership, with liability for withdrawal fees.
3. When the circuit court, on confirmation of a commissioner's report, fixes an attorney's fee at $25, this court will not disturb such finding, unless plainly contrary to the evidence in support of such fee.
4. The amount in controversy between the litigants must exceed $100 exclusive of costs, to give this court jurisdiction.
Appeal from circuit court, Taylor county; John Homer Holt, Judge.
Bill by Winifred C. Shahan's administrator against Winifred C Shahan's heirs, etc. Decree for plaintiff, and the Monumental Savings & Loan Association appeals. Affirmed.
S. M Musgrove, for appellant.
W. R D. Dent, for appellee.
The Monumental Savings & Loan Association appeals from a decree of the circuit court of Taylor county in the chancery cause of Winifred Shahan's administrator against Winifred Shahan's heirs, etc. The appellant has a trust lien on the real estate of the decedent, which the court, on report of a commissioner, ascertained to amount to the sum of $1,112, and decreed accordingly. The appellant claims that the court erred in not selling the equity of redemption subject to the appellant's lien, instead of selling the property as a whole, on terms different from those contained in the deed of trust. This being a suit by the administrator under section 7, c. 86, Code, to sell the real estate of a decedent to pay her debts, the court had the right to sell the property in such manner and on such terms as would be best for all the parties in interest. Death ended the relation existing between the appellant and the decedent. 4 Am. & Eng. Enc. Law (2d Ed.) 1029; Thomp. Bldg. Ass'ns, 66, 67. Under section 3, c. 86, Code, decedent's real estate became assets for the payment of her debts. Rex. v. Creel, 22 W.Va. 373. "The fact that the real estate of a deceased debtor is subject to incumbrances of any sort, such as mortgages, rights of dower, curtesy, etc., does not affect its liability to be sold under an order of court for the payment of debts, even though, in case of a mortgage, an action for foreclosure is pending; but the rights of the incumbrancer will always be protected, either by selling subject to the incumbrance, or by discharging it out of the proceeds of sale." 11 Am. & Eng. Enc. Law (2d Ed.) 1092, 1135, 1159. The case of Wise v. Taylor, 44 W.Va. 492, 29 S.E. 1003, is not applicable to a decedent's real estate.
The appellant further claims that it should have been allowed $11 fines accrued after the death of Mrs. Shahan. This would be wholly improper, as her death ended her membership, and there being no hand to pay,...
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