Travis. v. Travis, (CC 539)

• Decision Date: 29 October 1935
• Docket Number: (CC 539)
• Citation: 116 W.Va. 541
• Court: West Virginia Supreme Court
• Parties: Robert Levi Travis et al. v. W. L. Travis, Executor, et al.

116 W.Va. 541

Robert Levi Travis et al.

v.W. L. Travis, Executor, et al.

(CC 539)

Supreme Court of Appeals of West Virginia.

Submitted October 22, 1935.

Decided October 29, 1935.

1. Equity

Where matters impleaded in a bill in chancery are interwoven and center around the same general subject matter and can be more conveniently settled together than separately, the bill will not ordinarily be regarded as multifarious.

2. Equity

Equity has jurisdiction, at the instance of interested persons, of all questions pertaining to trust estates.

3. Courts

Under West Virginia Constitution, Article VIII, section 24, and Code 1931, 7-1-3, county courts are vested with primary jurisdiction to settle accounts of personal representatives, but such jurisdiction may be interrupted by equity where there is involved some question of equitable cognizance as, for example, the construction of a will, fraud, waste, and the like.

Certified from Circuit Court, Doddridge County.

Suit by Robert Levi Travis and others against W. L. Travis, executor of the estate of George Bee Travis, deceased, and others. A demurrer to the bill was sustained and the ruling certified for review.

Reversed and remanded.

Kenna, Judge, dissenting.

Thomas J. Davis and P. D. Farr, for plaintiffs.

Wyatt & Randolph and J. Paid Bumgardner, for defendants.

Maxwell, Judge:

Upon this certification under Code 1931, 58-5-2, there is raised the question of the sufficiency of a bill in chancery. The trial chancellor thought it insufficient and sustained a demurrer thereto.

George Bee Travis died testate November 2, 1927. By his will, he constituted his son William L. Travis, and C. T. Hyatt executors thereof. Both qualified. The latter resigned in 1929. Further, by the will, William was authorized and directed to take charge of and operate the personal estate for the benefit of those interested. He undertook the trust. The trusteeship upon which he entered involved duties beyond those incident to his executorship. Highland v. Empire Bank, 114 W. Va. 473, 172 S. E. 544.

This suit is prosecuted by certain of the children of George Bee Travis against William L. Travis and others.

One of the grounds of challenge of the bill is multifariousness. We do not deem that point to be well taken, because the several matters impleaded all center around the same proposition, namely, the conservation and proper distribution of the estate. "A bill will not usually be regarded as multifarious where the matters joined in the bill, though distinct, are not absolutely independent of each other, and it will be more convenient to dispose of them in one suit." 1 Hogg's Eq. Pr., sec. 136(4). Consider, Johnson v. Sanger, 49 W. Va. 405, syl. 4, 38 S. E. 645; Tierney v. Coal Co., 85 W. Va. 545, syl. 2, 102 S. E. 249; Park v. Adams, 114 W. Va. 730, 735, 173 S. E. 785.

As appears from the bill the will of George Bee Travis contains a possible ambiguity in this, that he first specifically excepts certain property "known as the Trainer and Travis Oil and Gas interest," and then proceeds to devise certain interests in all of his real estate and to bequeath separate interests in all his personal property. The meaning and effect of these provisions should be judicially determined. A new statute confirms equity jurisdiction for construction of wills even though no other specific ground of such jurisdiction exists. Code 1931, 41-3-7.

But there are other equitable grounds alleged in the bill. William L. Travis, as executor and trustee, is charged with breach of trust, waste, misappropriation of funds and neglect of duty. "The law is well settled that a court of equity has jurisdiction, on the application of persons interested, of all questions relative to the establishment, enforcement, and protection and preservation of a trust on real or personal property." 65 Corpus Juris, p. 1011. Concordant: Charlton v. Motor Co., 115 W. Va. 25, 174 S. B. 570; Currence v. Ralphsnyder, 108 W. Va. 194, 151 S. E. 700; Downes v. Lumber Co., 99 W. Va 267, 128 S. E. 385; Wilson v. Kennedy, 63 W. Va. 1, 59 S. E.736. The matters are set out with full particularity. The complexity of the situation is manifest. On such presentation, equity should take cognizance. This will prevent circuity of procedure and multiplicity of suits.

Under West Virginia Constitution, Art. VIII, sec. 24, and Code 193.1, 7-1-3, county courts are vested with primary jurisdiction to settle accounts of personal representatives. Such jurisdiction, however, may be interrupted by equity where there is...