State ex rel. Linger v. County Court of Upshur County

• Decision Date: 09 November 1965
• Docket Number: No. 12489,12489
• Court: West Virginia Supreme Court
• Parties: . Supreme Court of Appeals of West Virginia

Page 689

144 S.E.2d 689

150 W.Va. 207

STATE ex rel. Earl J. LINGER and Ruth W. Linger v. The COUNTY COURT OF UPSHUR COUNTY, a corporation, et al.

No. 12489.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 1, 1965.

Decided Nov. 9, 1965.

Syllabus by the Court

1. Under Section 1, Article 1, Chapter 53, Code, 1931, the writ of prohibition lies as a matter of right in all cases of usurpation and abuse of power when the inferior court does not have jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.

2. Under Article VIII, Section 24 of the Constitution of this State, county courts have jurisdiction and, as courts of record, are vested with judicial powers in all matters of probate, the appointment and qualification of personal representatives, guardians, committees, and curators, and the settlement of their accounts, and in all matters relating to apprentices.

3. 'An appointment of an administrator in a county in which the intestate left no estate and did not reside at the time of his death, is not void and cannot be collaterally attacked. Although voidable, it is treated as valid and allowed full operation, until vacated or otherwise abrogated.' Point 1, syllabus, Colley v. Calhoun, 89 W. Va. 399 .

4. Distributees of an estate of a person who dies intestate, as mentioned in Section 4, Article 1, Chapter 44, Code, 1931, are those who would be entitled under the statute of distribution to the personal estate of the decedent who dies intestate; and if there is no surviving husband, wife, child or descendant of a child, mother or father of an intestate, the brothers and sisters of the intestate and their descendants are the distributees of his estate.

5. A person who is not a distributee of the estate of an intestate is not entitled to be appointed administrator of such estate or to designate a person to be appointed as such within thirty days of the death of such intestate and does not have a status which enables him to object to or challenge the appointment of an administrator of such estate.

6. As a general rule any person who will be affected or injured by the proceeding which he seeks to prohibit is entitled to apply for a writ of prohibition; but a person who has no interest in such proceeding and whose rights will not be affected or injured by it can not do so.

7. A person who is not a distributee of the estate of an intestate does not have such an interest in the appointment of an administrator of the estate of a deceased intestate as will entitle him to maintain a proceeding in prohibition to prevent the appointment, within thirty days of the death of such intestate, of the nominee of distributees of such intestate as administrator, or to prevent the administrator so appointed from acting as such in the administration of such estate.

8. Statements or expressions of a person since deceased to remain or reside with the petitioners in a pending proceeding or concerning the preparation of an agreement between such person and the petitioners are personal transactions or communications, and as the petitioners are persons or parties who have an interest in the result of such proceeding, their testimony with regard to all such matters is incompetent and inadmissible.

9. 'When timely objection has been interposed to the deposition of an incompetent witness, the objecting party does not waive such objection by a cross-examination, limited to the subject matter of the evidence given in chief.' Point 3, syllabus, Poteet v. Imboden, 77 W.Va. 570 .

10. A person does not lose his residence when he leaves his home and goes into another county, for temporary purposes merely, with the intention of returning

Herbert M. Blair, John R. Haller, Weston, for relators.

Hymes & Coonts, Gilbert Gray Coonts, Buckhannon, for respondents.

HAYMOND, Judge:

In this original prohibition proceeding instituted in this Court the petitioners, Earl J. Linger and Ruth W. Linger, husband and wife, seek a writ to prevent the defendants, The County Court of Upshur County, its members Burnam A. Cutright, Royden B. Ringer and Howard C. Gould, Holt G. Martin, Clerk of the County Court of Upshur County, and Paul D. Linger, Administrator of the Estate of Conna Elizabeth Matthews, deceased, from carrying out, enforcing or acting under or by virtue of an order of the clerk of such county court entered June 3, 1965, appointing Paul D. Linger administrator of her estate and an order of the County Court of Upshur County entered June 28, 1965 which confirmed the appointment of Paul D. Linger as such administrator.

Upon the petition and its exhibits, consisting of an agreement and a photostatic copy of the appointment by the county clerk of Paul D. Linger administrator of Conna Elizabeth Matthews, deceased, and the supplemental petition and its exhibits, consisting of a notice by the petitioners to the defendants informing them of the pendency of this proceeding and admonishing them to refrain from any action at the session of the county court to be held on June 28, 1965 leading to the confirmation of the appointment of Paul D. Linger as administrator by the county clerk, and a photostatic copy of the order of the county court confirming such appointment, this Court, on July 7, 1965, issued a rule returnable September 1, 1965, at which time this proceeding was submitted for decision upon the original petition and its exhibits, the supplemental petition and its exhibits, the demurrer in behalf of the defendants, the joint and several answer of the defendants, the County Court of Upshur County, its members and its clerk, the separate answer of the defendant Paul D. Linger, Administrator of Conna Elizabeth Matthews, deceased, the general replication of the petitioners to the answer of the administrator, and the depositions and the written briefs and the oral arguments in behalf of the respective parties.

Conna Elizabeth Matthews, seventy one years of age, the widow of L. S. Matthews, deceased, who together with her husband had been a resident of Upshur County, West Virginia, for several years, on May 22, 1965, left the Hosaflook Nursing Home, located about nine miles from Buckhannon, Upshur County, where she had resided for a period of approximately two months, and by traveling partially on foot and partially by automobiles driven by acquaintances, went to the home of the petitioners at 246 South Main Street, in Weston, Lewis County, West Virginia, where she arrived in the late afternoon of that day and where she remained until her sudden death four days later on May 26, 1965. Enroute from the nursing home to Weston she stopped and had lunch at the home of Audra Franklin Cottrill and his wife at a place known as Reger, located about two miles from Buckhannon. She arrived at the Cottrill home about ten o'clock in the forenoon, had lunch and engaged in some conversation with Mr. and Mrs. Cottrill and their son Rolland Lee Cottrill, eighteen years of age, who about three o'clock in the afternoon left with her for Weston where they arrived at the home of the petitioners later the same afternoon. When they arrived the petitioner Earl J. Linger was on the porch of his home and he and his wife cordially received their visitor.

When Conna Elizabeth Matthews was at the Cottrill home she told Mabel Cottrill, the wife, that she started to walk on her journey from the Hosaflook Nursing Home and on the way was 'picked up' by an acquaintance who was driving an automobile and took her to a point near the Cottrill home; that she was anxious to leave the nursing home because she was mistreated there and had been called vile names; that she wanted to go to Weston to the home of her niece, whom she liked very well, where she could rest; that she said she was going to visit her niece because she wanted to find some place where she would be well treated; that her clothing was still at the Hosaflook Nursing Home; that she did not know how she would get her clothing; and that she talked as if she would later return to Buckhannon. She told the husband Audra Franklin Cottrill that she had been treated rudely at the nursing home and had been called vile names at that place and that she was going to Weston to stay with a niece where she intended to rest for a few days, after which she would come back to Buckhannon and would get 'herself a room'; but that she gave no indication that she intended to go back to the nursing home. She also told Rolland Lee Cottrill, the eighteen year old son of Mr. and Mrs. Cottrill, who drove her from their home to the home of the petitioners in Weston, that she had been mistreated at the nursing home; that she desired to go to her niece for a visit; and that she planned to come to Buckhannon later. When she arrived at the home of the petitioners Rolland Lee Cottrill heard her tell the petitioner Earl J. Linger that she had come 'over to visit for a while'; and that he treated her cordially and invited her into his home. On her trip to Weston she carried her purse, a satchel, a suitcase and two paper bags and she took with her her bank account books.

Sometime before she started on her journey to Weston Conna Elizabeth Matthews had been a paying guest or lodger for a period of two or three days in the nursing home operated by Mrs. Ada Rohrbough, at French Creek, in Upshur County, West Virginia. She was not a desirable guest at that place because of her uncouth personal habits and the proprietress refused to permit her to stay longer for the additional reason that the regular monthly rate was $60.00 and Conna Elizabeth Matthews was unwilling to pay more than $50.00 per month. Though she was reluctant to do so, she went from the Rohrbough Nursing Home to the Hosaflook Nursing Home with its proprietress, who came to the Rohrbough Nursing Home for her, and she remained at the Hosaflook Nursing Home, which was located about nine miles from Buckhannon, in Upshur...