State ex rel. Charlotton v. O'Brien

• Decision Date: 06 February 1951
• Docket Number: No. 10330,10330
• Citation: 135 W.Va. 263,63 S.E.2d 512
• Parties: STATE ex rel. CHARLOTTON et al. v. O'BRIEN, Judge et al.
• Court: West Virginia Supreme Court

Page 512

63 S.E.2d 512

135 W.Va. 263

STATE ex rel. CHARLOTTON et al. v. O'BRIEN, Judge et al.

No. 10330.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 10, 1951.

Decided Feb. 6, 1951.

Syllabus by the Court.

1. A suit in equity instituted pursuant to Code, 34-2, to have property belonging to the estate of a decedent escheated to the State, may be maintained in the county where the personal representative of the estate is appointed or in the county where land belonging to the estate is situated.

2. The powers granted to a county court to make settlement of accounts of estates of decedents by Section 24 of Article VIII of the Constitution, include the power to adjudicate rights of persons claiming as next of kin of decedents, where such adjudication does not involve other matters of a judicial nature.

J. Raymond Gordon, Charleston, for relators.

J. Campbell Palmer, III., Charleston, A. C. Schiffler, W. F. Keefer, Wheeling, for respondents.

GIVEN, Judge.

Relators Virgie Charlotton, Anna Rutherford, E. L. Stewart, Ray Stewart, Rome Stewart, Hassie Copen, Lizzie Deaver, Ethel Thompson, assignee of Charlie Stewart, and Virginia Douglas, assignee of Harry W. Stewart, on September 26, 1950, filed their petition in this original proceeding in prohibition, praying that the defendant, the Honorable J. J. P. O'Brien, Judge of the Circuit Court of Ohio County, be prohibited from enforcing a certain decree entered in a proceeding consolidating two chancery causes then pending in that court. Karl G. Sailer, assessor and escheator of Ohio County, upon his own petition, was permitted to become a defendant herein. On October 2, 1950, the Court awarded unto relators a rule in prohibition, as prayed for in their petition. Defendants have filed their demurrer and answer to the petition. There exists no dispute as to any question of fact.

One of the chancery causes mentioned was instituted by Karl G. Sailer, Escheator of Ohio County, who sued on behalf of the State of West Virginia, against A. T. Gordon, administrator of the estate of Harry T. Winters, deceased, United States Fidelity & Guaranty Company, a corporation, and '* * * all unknown persons claiming any interest whatever in the estate, real or personal, of the said Harry T. Winters, deceased, as heirs, legatees or distributees thereof, or otherwise, defendants.' The purpose of this suit was to have the property belonging to the estate of Harry T. Winters, after payment of debts and costs of administration, decreed to be escheated to the State of West Virginia.

The other suit mentioned was instituted by relators herein against A. T. Gordon, administrator of the estate of Harry T. Winters, deceased, and the United States Fidelity & Guaranty Company, a corporation, surety on the bond of the administrator. The object of this suit was to obtain a decree compelling the administrator to deliver unto relators, as heirs and next of kin of Winters, all of the property remaining in the estate, after payment of debts and costs of administration.

It appears from the pleadings herein that Harry T. Winters, a resident of Ohio County, died intestate on January 25, 1933. He left an estate of the approximate value of $28,000. After payment of debts and costs of administration there remained in the hands of the personal representative approximately $19,500, consisting, in part, of real estate situated in Ohio County, West Virginia. The County Court of Ohio County appointed Mutual Savings & Loan Company administrator of the estate. Within thirty days from the time of the demise of Winters certain claimants, including relators or the assignors of relators, hereinafter designated relators, produced certain evidence tending to show that they were the heirs and next of kin of Winters, and moved the county court to annul the appointment of Mutual Savings & Loan Company, which motion was denied. Upon appeal, however, the Circuit Court of Ohio County annulled the appointment made by the county court and on motion of relators appointed A. T. Gordon administrator of the estate. Thereafter the county court duly referred the estate to a commissioner of accounts of Ohio County for settlement.

Numerous claimants, including relators appeared before the commissioner of accounts and much evidence was produced by them in an effort to establish relationship to Winters. The commissioner of accounts found and reported to the county court that relators had failed to establish any relationship to Winters and the county court, by proper order, affirmed the report. Upon appeal to the Circuit Court of Ohio County by relators the order of the county court was affirmed in that respect, and this Court refused a writ of error to the final order of the circuit court, on June 15, 1936.

Thereafter relators, claiming to be the next of kin of Harry T. Winters, instituted an action of assumpsit in the Circuit Court of Roane County against A. T. Gordon, administrator of the estate of Harry T. Winters, and obtained a judgment for the sum remaining in the estate. The United States Fidelity & Guaranty Company obtained a writ of error from this Court to that judgment and, in reversing the judgment of the Circuit Court of Roane County, this Court held: 'For the purpose of the prosecution of suits against him an administrator must be considered a resident of the county where he was appointed. That is his official residence regardless of where his home may be located.' Charlotton v. Gordon, 120 W.Va. 615, 200 S.E. 740, 743.

Thereafter relators obtained a rule in mandamus from this Court, directed to Frank A. McMahon, Commissioner of Accounts of Ohio County, to whom the Winters estate had been referred, requiring him to show cause why he should not make report to the Probate Court of Ohio County concerning the distributees of the estate. The writ was refused, the Court holding: 'Mandamus does not lie to require a further report from a commissioner of accounts to whom an estate has been referred for settlement concerning which he has made the report required by Code, 44-2-16, there being no showing that the estate has been re-referred to the same commissioner after the filing of the named report.' State ex rel. Gordon v. McMahon, 128 W.Va. 470, 37 S.E.2d 91.

Later relators instituted an action in the United States District Court for the Southern District of West Virginia against the administrator of the Winters estate, his surety, and others, for the purpose of compelling the administrator to deliver unto relators the remaining portion of the estate. This action was dismissed by the Court on motion of the escheator of Ohio County on the ground that the Court had no jurisdiction, there existing no diversity of citizenship as to necessary parties.

The first question facing the Court relates to the jurisdiction of Ohio County to entertain the suit brought on behalf of the State of West Virginia by the escheator of Ohio County, the purpose of which was to have the estate of Winters decreed escheated to the State. Relators contend that only the Circuit Court of Kanawha County, wherein the seat of the State government is located, has jurisdiction of such a suit, for the reason that venue of such a suit is placed exclusively in that court by the statute.

Code, 42-2-2, reads: 'To the State shall accrue all the personal estate of every decedent, of which there may be no other distributee.' Code, 37-2-1, reads: 'Whenever any person shall die intestate and without any heir or next of kin, owning real estate or personal property within this State, the title of such deceased person therein shall escheat to the State.' Code, 37-2-4, provides that 'The assessor of each county shall by virtue of his office be the escheator of such county.' Section 5 of the same article requires the escheator to make an annual report to 'the commissioner of school lands' of all lands in his county escheated to the State. Chapter 160 of the 1947 Acts of the Legislature, Regular Session, Article 4, Section 8 (11A-4-8, Michie's 1949 Code), requires the escheator to make such a report to the State Auditor. Other provisions of Article 4 of Chapter 11A provide for the sale by the deputy commissioner of forfeited and delinquent lands, in compliance with the Constitution of West Virginia.

Code, 34-2, however, contains the only statutory provision relating to recovery of possession by the State of escheated property. Section 1 reads: 'The residuum of a decedent's estate, belonging to the State, and any property derelict, or having no rightful owner, may be recovered from any person in possession thereof, by a bill in equity in the name of the State.' Section 2 requires that in any such suit '* * * the court shall cause a publication to be made for three months in some newspaper printed in the county in which the seat of government may be, * * *.' Section 3 requires the court, where no person appears to show title in himself, to '* * * decree the residuum or other property to the State, and enforce the collection thereof, or of the proceeds of the sale of such property.' It may be noted that none of these statutory provisions expressly provides that such a suit be prosecuted in any certain jurisdiction, although Section 2 requires that the notice provided for be published for three months in the county wherein the seat of government may be. Such notice was so published in the suit instituted on behalf of the State and also published in Ohio County. Our general venue statute, Code 56-1-1, in so far as may be applicable, reads:

'Venue in General.--Any action or other proceeding at law or suit in equity, except where it is otherwise specially provided, may hereafter be brought in the circuit court of any county:

'(a) Wherein any of the defendants may reside, * * *.

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'(c) If it be to recover land or subject it to a debt, wherein such land or any part thereof may be; or

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'(f) If it be on behalf of the State in the...