Trail v. Trail
| Decision Date | 20 December 1904 |
| Parties | TRAIL v. TRAIL et al. |
| Court | West Virginia Supreme Court |
Submitted September 12, 1904.
Syllabus by the Court.
1. A decree in a suit by an executor against devisees to convene creditors and administer the assets for their payment, made on a report of debts by a commissioner, which decrees debts against the estate, and subjects its lands to their payment is appealable, and must be appealed from within two years.
2. A bill by an executor to administer the assets of his testator for the payment of debts states that a person named claims a debt against the estate on a specific demand, and such person is made a formal party, but does not prove his claim or appear. A decree is made allowing certain debts, but not his debts, and subjecting the estate's land to their payment. He is concluded by the decree.
3. Under Code 1899, c. 86, § 9, if a creditor of an estate of a decedent fail to present his claim before a decree upon a report of debts allowing debts against the estate and subjecting lands to their payment, such decree bars him from claiming participation in the proceeds of such lands until such decreed debts are satisfied.
4. When appeal from an appealable decree is barred by time, an appeal from a later decree will not review the former decree, and the later decree cannot be reversed for an error in it arising from following the former decree.
Appeal from Circuit Court, Jefferson County; E. Boyd Faulkner Judge.
Bill by George W. Trail against Alberta Trail and others. Decree for plaintiff, and defendants appeal. Affirmed.
JOS. TRAPNell and Forrest W. Brown, for appellants.
D. B Lucas and MacDonald & Beckwith, for appellee.
George W. Trail, executor for Charles H. Trail, filed his bill in the circuit court of Jefferson county against the devisees of Charles H. Trail and various creditors of Trail to settle the accounts of said executor, convene the creditors of Trail and ascertain their debts, and to subject the real and personal estate of Trail to the payment of his debts. The court referred the cause to a commissioner to settle with the executor, to report of what real estate Trail died seised, and the debts due from him and their priorities. The commissioner made a report specifying the real estate of said decedent, and numerous debts against him, and settled the accounts of said executor, and reported that there was no personal estate to satisfy the debts. The cause was heard upon said report, and a decree was pronounced against the estate for the payment to divers persons of their divers debts, fixing their amounts, and declaring them all to be of the same class as to the assets of said estate, and decreed that the real estate reported by said reporter as the property of said decedent be sold by commissioners appointed for that purpose. This decree was pronounced June 12, 1900. Eugene Baker was a defendant to the suit, the bill stating that he claimed a debt against Trail's estate by reason of Trail having been a deputy of Baker, who was sheriff of Jefferson county, on account of tax bills for collection, for which he was to account to Baker. The report of the commissioner did not report any debt in favor of Baker. Baker did not except to the report. On February 21, 1902, Baker filed a petition stating that Trail had been his deputy as sheriff, and received tax-books and collected taxes, and on that account he was indebted to Baker in a sum left blank in said petition, and it prayed that Baker's debt might be audited and paid out of the estate. On June 2, 1902, he filed an amended petition setting up the same thing as to the indebtedness, and claiming that it amounted to $2,880.25, and asking its payment out of the assets of said estate. On the same date he filed an answer setting up his claim. He filed no evidence of Trail's indebtedness. The sale commissioner proceeded from time to time to sell different pieces of real estate of said Trail, and made several reports of such sale, which were confirmed by the court. When the commissioner would report these sales at different times, the court would refer the matter of fixing the ratable shares or dividends in the several sale moneys of the various creditors whose debts had been decreed, requiring of the commissioner forthwith reports. This was done because there were several sales at different times, and the matter of percentage payable on the many debts was a matter of somewhat elaborate calculation. To one of these reports Baker made an exception because the commissioner had failed to report upon his claim, the court having on February 21, 1902, when Baker's petition was filed, referred it to the same commissioner to report upon Baker's demand. By a decree August 22, 1902, the court heard the cause upon the record already made and on Baker's petition, amended petition, and answer, and the forthwith report of the commissioner Cleon Moore, apportioning a fund in the hands of the sale commissioner arising from sale of a part of said realty, and the court decreed that the funds in the hands of the sale commissioner should be distributed to the creditors whose debts had been audited by the former decree under the said general order of reference, and overruled Baker's exception to the said forthwith report. Thus the court refused to allow Baker any part of the assets, to the prejudice of those creditors who had proven their demands before Commissioner Moore under the general order of reference, and whose debts had been allowed against the estate by the said decree of June 12, 1900. The court again directed the commissioner to take proof of Baker's demand, and it was afterwards reported by a commissioner's report filed February 25, 1903, at $2,957.70. It was ascertained and reported by the commissioner that the property of said decedent was not sufficient to pay his debts. The record fully discloses that fact. It discloses that said property will not pay the debts decreed by the decree of June 12, 1900. An unsigned petition, said in the record to be the petition of James E. Watson and others, was filed in the case August 22, 1902. It states that said petitioners had joined as sureties in the bond of Baker as sheriff, and that a liability had been found to exist in favor of the state and county of Jefferson against Baker as sheriff, for which they, as sureties, would be liable, and that thus they were interested in having the property of Trail, because he was Baker's deputy, applied to pay a liability of Trail to Baker by reason of Trail's having been Baker's deputy--the same liability specified above. They specified no amount of liability. They simply prayed that the fund in the case arising from said sale of Trail's property be retained in the hands of a receiver to await the liabilities of the bondmen of Baker. By the said decree of August 22, 1902, which denied relief to Baker, as above stated, the court also denied relief upon the petition of the said bondmen of Baker. Baker died pending the suit, and it was revived against his administrator. By the decree of February 21, 1900, mentioned above as ordering a reference to convene creditors, the court directed the sale of a certain piece of the realty in advance of any convention of creditors, and that property was sold, and its proceeds consumed by application upon a debt due the Bank of Harpers Ferry, which had a mortgage thereon, giving it a preference over other creditors as to the property. This decree was made because some of the parties assented to it. From all these decrees the administrator of Eugene Baker, and James E. Watson and others, joining him, in said petition have appealed.
The objection to the decree selling the piece of property in advance of the ascertainment of the debts is based on the ground that a decedent's land cannot be sold until there has been such ascertainment. This is true, but it is useless to say more about that decree, for the reason that later decrees are barred, and cannot now be reversed, as appellants' counsel freely admit, it going with them.
An assignment of error claims that it was error to confirm the report of the commissioner auditing the debts, which excluded the debt of Baker. The argument is that the court should have recommitted it to inquire into the debt of Baker, though the report was not excepted to by him, it appearing that there was such a debt, since the bill alleged it. In the first place, we cannot affect that decree because it dates June 12 1900, and the appeal was allowed September 10, 1903, and therefore the appeal is barred by the statute of limitation so far as that decree is concerned. It is argued, however, that an appeal from that decree is not barred, because it is not a final decree, and any error in it is to be remedied under an appeal from a later decree, as it would be carried into the subsequent decrees, which are within the appeal limit. It is very true that under the case of Stout v. Phillippi, 41 W.Va. 339, 23 S.E. 571, 56 Am. St. Rep. 843, a nonappealable decree is carried forward to the date of a later appealable decree, and is reviewable upon an appeal from the later decree. But the fault in this position is that that decree of June 12, 1900, is essentially an appealable decree, because it confirms the commissioner's report auditing debts against the estate, ascertains these debts against it, and specifies to whom they are going, and declares...
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