Simmons v. Simmons

• Decision Date: 21 October 1919
• Citation: 100 S.E. 743
• Court: West Virginia Supreme Court
• Parties: SIMMONS et al. v. SIMMONS et al.

100 S.E. 743

SIMMONS et al.

v.SIMMONS et al.

Supreme Court of Appeals of West Virginia.

Oct. 21, 1919.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Appeal from Circuit Court, Roane County.

Suit by Earle Simmons against W. S. Simmons, Susan Simmons (now Rader), and Lula A. Simmons, with answer and cross-bill by them against W. S. Simmons and others, interpleaded defendants. Decree for plaintiff and defendants Susan Rader and Lula A. Simmons, referring cause to a commissioner for an accounting of rents and profits, and defendants W. S. Simmons and others appeal. Reversed as to the reference, and otherwise affirmed.

Geo. F. Cunningham, of Spencer, Warren Miller, of Ripley, Chas. E. Hogg, of Point Pleasant, S. M. Williamson, of, Waynesburg, Pa., and Pendleton, Mathews & Bell, of Point Pleasant, for appellants.

Ryan & Boggess and Harper & Baker, all of Spencer, Smith D. Turner, of Parkersburg, and Geo. E. Price, of Charleston, for appellees.

MILLER, P. The common object of the original and two amended and supplemental bills filed by the plaintiff Earle Simmons and of the answer and cross-bill filed for and on behalf of Susan Simmons and Lula A. Simmons against the defendants interpleaded therein, was to show cause against and have removed as clouds upon their title to the home farm of the late James M. Simmons, their father, given them by his will, two certain decrees made on April 3, 1902, in a certain suit or proceeding purporting to have been begun and prosecuted by petition on behalf of the plaintiff Earle Simmons by H. D. Wells, his guardian, and on behalf of the respondents and cross-bill plaintiffs by P. A. Tallman, their guardian, and by J. P. Thomasson, committee for their mother Minnie B. Simmons, then an insane person, in the circuit court of Roane county, and also certain deeds and leases depending thereon and under which other of the defendants impleaded claimed right and title to said farm or parts thereof. Said petition named no parties defendants, but in the decrees made thereon the case is styled in the name of petitioners versus Z. T. Simmons, W. S. Simmons, M. F. Simmons, F. M. Simmons, G. B. Simmons, T. R. Simmons, Virena Vandevender, Mary E. Ferrell, and said Minnie B. Simmons, an insane person, and Lula A. Simmons, Susan Simmons and Earle Simmons, infants, defendants.

The petition showed that the adults named therein, except the said Minnie B. Simmons, were plaintiffs and contestants, and the said Minnie B. Simmons, widow, and petitioners were defendants and contestees in two certain suits then pending in the said circuit court, the object of one of which suits was to set aside the will, the other the deed of said James M. Simmons, both instruments having been made and executed by the testator and grantor on the same day. The petition also showed that in the suit to contest the will of the testator an issue devisavit vel non had been awarded and that issue had also been made up in the other suit to set aside said deed.

By the first of the decrees made on the petition it was adjudged, ordered and decreed that all the matters involved in said two suits be and the same were thereby referred to the consideration and arbitration of the three arbitrators named therein who were directed to hear proof and consider the pleadings and evidence taken in said two suits and adjust the matters in difference then between the parties thereto and make report of their proceedings thereunder to the court.

The second of said decrees, confirming the report of said arbitrators, copied bodily into the decree and in strict accordance therewith, was that the said Z. T. Simmons and others, the contestants, do take and hold free of all claims of the said Minnie B. Simmons, Susan Simmons, Lula A. Simmons and Earle Simmons the tract of land lying in Smithfield district known as the James M. Simmons home farm and containing about one thousand acres; that they also take and hold the farm known as the Flat Fork Farm described in said will and deed; and that they do within thirty days from the date of the decree pay to J. B. Thomasson, committee of the said Minnie B. Simmons, the sum of three thousand dollars for the use and benefit of his insane ward, and that they do release all other rights, devises and bequests given to each of them under said will, and that in all other regards the said will and deed do stand and remain in full force and effect.

The decrees and proceedings sought to be set aside by the present suit purport to have been had and taken pursuant to section 5 of chapter 108 of the Code (sec. 4504), relating to arbitration. The present bills and crossbill are predicated on the rights reserved in section 4 of said chapter (sec. 4503) to set aside awards for errors apparent or when procured by corruption or other undue means, or by mistake, or when there has been misbehavior in the arbitrators and the power of courts of equity over awards generally reserved by said section, and also upon the rights given infants by section 7 of chapter 132 of the Code (sec. 4941), within six months after attaining the age of twenty-one years to show cause against said decrees regardless of the provisions of section 4 thereof, which latter section gives the same validity to decrees executed pursuant to judicial decrees and orders on behalf of others as if executed by the parties themselves. So there can be no doubt of the right of plaintiffs to maintain this suit and obtain relief if sufficient cause has been shown therefor in the bills.

The bills and answers thereto are elaborate pleadings. The bills challenge the validity of the decrees and proceedings upon said petition, upon several grounds; first, that the award was void because the arbitrators exceeded their powers in undertaking to partition the home farm to the contestants of the will, when the questions submitted to them were limited to the issues in said two suits, whether the will and deed were the will and deed of said testator and grantor; second, because the judgment on said award was pronounced without a rule to show cause against it at the first term of the court after the parties had been summoned, as required by section 4 of chapter 108 of the Code; third, that said section 5 of chapter 108 conferredno power or jurisdiction upon the court to authorize the guardians to arbitrate the title of the infants to the home farm given them by the will of the testator; fourth, that the award and the whole arbitration proceedings were a nullity for want of jurisdiction of the infants in the arbitration proceeding, as they were not made parties thereto; fifth, because of the misconduct of the arbitrators in failing to give notice of the time and place of hearing, to hold meetings for hearing, to take evidence as required by the order of submission, and because they adopted an award prepared for them by the attorneys for Thomasson and the older set of children; sixth, because the arbitrators themselves did not consider the evidence or act as triers of either the law or the fact, and were mere dummies to cover up a compromise already made between Thomasson and the other set of children, contestants, as agreed; seventh, that on the whole record the award was a gross fraud upon the infants and the result of an unconscientious, inequitable and fraudulent bargain between the contestants of the will and the said Thomasson and the guardians of said infants.

By demurrers and answers appellants question the sufficiency of the bills as bills to review the prior decrees and proceedings in the two suits instituted by them to set aside the will and deed, on several grounds, among them that neither the contents nor the substance of these proceedings are set forth therein, nor any excuse given for not doing so, and generally that the other facts alleged and relied on amount to conclusions and innuendoes.

The reply made to these points is that appellants have misconceived the purpose and scope of the present bills, and besides that all of the proceedings so far as existent were made part of the bill by reference thereto. The allegations and proof respecting the same are that the papers in these suits for the most part had been lost or were unobtainable, and moreover that no final orders or decrees had been entered therein reviewable on petition or bill by anyone, except in so far as the final order or decree made upon the petition in said arbitration proceedings ordered said former suits "dismissed agreed."

We have given very careful consideration to all the many questions presented by the very able and elaborate briefs of learned counsel on both sides of the controversy, but having reached the conclusion that the rights of the parties, including those of the defendants invoking protection as innocent purchasers without notice, depend on the following comprehensive propositions applicable to the facts pleaded and established by proof, in affirming the decree below giving to plaintiffs the decree prayed for, it will be unnecessary to respond to any of the many other propositions sought to be presented by the Record.

These propositions are, that the only questions presented by the pleadings in the two original suits and within the jurisdiction of the court to decide and the only questions presented to the arbitrators in the arbitration suit or that could have been lawfully submitted to them was whether the will or deed involved or any part or parts thereof was the will or deed of the testator or grantor; that no power was conferred or could have been conferred on the arbitrators to go outside of the issues involved in these suits to otherwise settle or compromise the rights of the infants to whom the home farm had been devised by said will; that if the will or deed was valid the estate of the testator or grantor would go as devised or granted, if invalid it would go according to the law of descents and distributions.

It is well settled by our decisions that upon an issue...