Smith v. Absent

• Decision Date: 01 May 1877
• Parties: Smith et al v. Henning. (Absent, Johnson, Judge).
• Court: West Virginia Supreme Court

10 W.Va. 596

Smith et al

v.Henning.

Supreme Court of Appeals of West Virginia.

Decided May 1, 1877.

1. In an action of ejectment, and at the trial thereof, in the county of Greenbrier, brought by Agnes M. Smith et al v. Thomas A. Henning, it was admitted by the parties that the land in the declaration mentioned is situate in the county of Greenbrier, West Virginia, and was in the possession of, and owned in fee by the late William Smith at the time of his death; that the said land is now, and was at the commencement of this suit, in the possession of, and claimed by, the defendant, and that it is the same land that is mentioned and described in the deed from John W. Jones, executor, &c, to the defendant hereinafter mentioned, under which the defendant claims title; and it was proved that William Smith, the testator, died on the day of July, 1863, at the residence of his son-inlaw, John W. Jones, in the county of Bedford, in the state of Virginia, where he was staying as a refugee; that he had gone from his home in Lewisburg, in the year 1862, and had taken with him his slaves, horses, wagon, carriage and some other property, to the county of Bedford; that the dwelling house of said Smith, at the time of his death, was in the county of Greenbrier, where he had resided for more than twenty years, and had declared his intention to return to it as soon as the war was over; and all the real estate owned by him at the time of his death lies in Greenbrier and Nicholas counties, in the state of West Virginia; that the plaintiff, Agnes M. Smith, is the widow of said William Smith, and the plaintiffs, Sarah K. Duffy and Elizabeth J. L. Jones, are the daughters, and Francis B. Smith the son, and only heirs of the said William Smith. And thereupon the defendant offered in evidence to the jury a certified copy of a paper pur- porting to be the last will of said William Smith, deceased, with the certificate of probate thereon from the county court] of Bedford county, Virginia, a copy of the qualification of John W. Jones, as executor of said will, in said county, and the order admitting said will and certificate to record by the circuit court of Greenbrier county, which said copies and order are as follows:

"I, William Smith, being of sound mind and disposing memory, do make this my last will and testament: I will and bequeath to my wife, Agnes M, Smith, and my two daughters, Elizabeth J: L. Jones and Sarah R. Duffy (John W. Jones acting by my appointment as trustee for Sarah R. Duffy), all my property of every description, both real and personal, including bonds, moneys, accounts, &c, (excepting my library and Nicholas land, which will be disposed of hereafter). After the payment of all my just debts, my property of every description (with the above-named exceptions), I direct to be equally divided amongst my wife, Agnes M. Smith, and my two daughters, E. J. L Jones and 3. R. Duffy, under the following restrictions, to-wit: After the death of my wife, Agnes M. Smith, I direct that her proportion of my estate shall revert to my two daughters, E. J. L. Jones and S. R. Duffy. Should my daughter, S. R Duffy, die before my wife, intestate and without issue, then the whole of my wife's proportion of my estate shall revert to my daughter, E. J. L Jones, and in the event of her death, to her children. John W. Jones, of Bedford county, whom I hereby appoint and constitute a trustee for my daughter, S. R. Duffy, shall hold all the propeny and effects derived from my estate, to which she shall be entitled by this, my will, for her separate use and benefit, free from the debts, liabilities or control, in any manner, of her husband, Philip Duffy. I further direct that S. R. Duffy's proportion of my real estate be sold as soon after my death as may be, if she desire it, and that the proceeds be held by said trustee for her separate use as aforesaid, subject to any disposition she may think proper to make of them. I will and bequeath to my daughter, E. J. L. Jones, my entire library, consisting of books of every description. I will and bequeath to my son, Francis B. Smith, and his children, my tract of land in the county of Nicholas; should said Francis B. Smith, however, die before either of my daughters, or without children, then this Nicholas land shall revert to my two above-named daughters. Whosoever of said parties to this will, that shall attempt to change or break said instrument in any manner, shall forfeit all claim or claims to their specified proportion of my estate. Lastly, I do hereby appoint and constitute my son-in-law, John W. Jones, my executor, to sell and convey any real estate that I may have, and to do any and all acts proper for an executor." Signed this 27th day of June, 1863,

" Wm. Smith,

" W. A. London,

" F. M. Hawkins."

" At a court of quarterly sessions, begun and held for Bedford county, at the court house, on Monday, the 27th day of July, 1863, the last will and testament of Wm. Smith, de. ceased, was produced in court, proved according to law by the oaths of W. A. London and F. M. Hawkins, the subscribing witnesses thereto, and ordered to be recorded. And on the motion of John W. Jones, the executor named in the will, who made oath thereto, and together with Thomas M. Jones and Ho. C. Jones, his securities, entered into and acknowledged a bond in the penalty of $20,000, conditioned according to law; certificate was granted him to obtain probate of said will in due form. And the said bond was ordered to be recorded.

"Teste:

"A. A. Arthur, C. B. C."

"State of Virginia, Bedford county, to-wit:

"I, Robert S. Quarles, clerk of the county court of the county and state aforesaid, do certify that the forgoing paper signed by Wm. Smith, is a true copy of the original will of Wm. Smith, deceased, which will is on file in the clerk's office of said court, and that the order following, admitting said will to probate, is a true transcript from the records of said court.

"Given under my hand and the seal of said court, this, the 20th day of June, A. D. 1874, in the 98th year of the commonwealth.

"ROBTHOST. S. quarles.

[Court Seal].

order.

"At a circuit court held for Greenbrier county, at the court house thereof, on Monday, June 14, 1875, this day came the parties, by their attorneys, and the plaintiffs, Sam'l Gilkeson, Thos. A. Henning and others, moved the couH to admit a paper, purporting to be a certified copy of the will of William Smith, deceased, from the county court of Bedford county, Virginia, to record in this court; and the court, after hearing the evidence and argument of counsel, is of opinion that the said paper should be admitted to record, and have the same effect, both as a will of real and personal estate, as the original would have if admitted to record. It is, therefore, considered by the court that said copy be recorded in this court as a will of real and personal estate, and that the plaintiffs recover their costs of the defendant."

Memo. "On the trial of this motion the defendants took a bill of exceptions to the rulings and judgment of the court, which is signed, sealed and made a part of the record in this cause."

The plaintiffs objected to the admission of said copies and order to the jury as evidence, but the objection was overruled and said copies and order allowed to go to the jury as evidence. Held:

Under the circumstances and for the reasons stated in the opinion of the Court in this case:

I. That the circuit court did not err in admitting as evidence

to the jury said, certified copy of said paper purporting to be the last will of said William Smith, deceased, with the certificate of probate thereon, from the county court of Bedford county, Virginia, and also the said copy of the order of qualification of John W. Jones, as executor of said will, in said county court, and also the order admitting said will and certificate to record by the circuit court of Greenbrier county.

II. That the validity of the said orders of said county court of Bedford, cannot be called in question in the trial of this cause.

III. That the acts of the said executor done in the county of Greenbrier, during the late war between the government of the United States, and the confederate states, while the said counties of Bedford and Greenbrier were under and subject to the jurisdiction, authority and control of the government of Virginia, at Richmond, under and in accordance with the law of Virginia then in force, are ordinarily good and valid, although said will was not admitted to probate in the county of Greenbrier, and said J ones had not qualified and given bond as executor of said will in the county of Greenbrier, or in this state.

2. The last clause contained in said wall, authorizing the executor to sell land, confers a simple power, and not a power coupled with an interest.

3. The said will passed the legal title in the land in controversy to the devisees.

4. The said simple power to sell land of the testator conferred by said last will, was for the purpose and intent of payment of debts of the testator, and for no other purpose. It is a qualified power.

5. If an executor under color of said power, sells land to raise

money to be applied to purposes other than the payment of debts of the testator and the purchaser had notice thereof, the sale and purchase thereof, and the deed from the executor to the purchaser for such land made in pursuance of said sale, must ordinarily be considered as unauthorized by said last clause of said will, and also, at least, constructively fraudulent as to devisees, and does not divest the devisees of their legal title to said land.

6. In making a deed in execution of, or in pursuance of a power,

it is not always necessary to recite therein the power, but it is the better and safer practice to do so. A case where it is unnecessary to recite the power. See opinion of the Court.

7. If a person in good faith, purchases land of an executor, who is

authorized by the will,...