Winning v. Silver Hill Oil Co..

• Decision Date: 20 September 1921
• Citation: 89 W.Va. 70
• Court: West Virginia Supreme Court
• Parties: Ross J. Winning, Executor, Etc. v. Silver Hill Oil Company et al.

89 W.Va. 70

Ross J. Winning, Executor, Etc.

v.Silver Hill Oil Company et al.

Supreme Court of Appeals of West Virginia.

Submitted September 7, 1921.

Decided September 20, 1921.

1. Executors and Administrators Foreign Executor Cannot

Proceed on Petition and Published Notice to Authorize Transfer of Property from Lawful Custody in this State to Another State.

An executor of the will of a person domiciled in a state other than this, at the time of his death, appointed by a court of such other state, in which the will was probated, but not shown to have been appointed in this state, seeking recovery of gas well rentals arising from a lease of an undivided interest of an infant devisee under the will, in a tract of land belonging to the estate of the testator, made on his behalf by his guardian duly authorized to execute it, from such guardian, and an adjudication of his right to future rentals under said lease, cannot proceed merely by petition and upon published notice, for such relief, under the provisions of sees. 3, 4 and 6 of ch. 84 of the Code, authorizing transfers of property and estates from custody in this state to proper custody in other states, by such procedure, nor any of them. (p. 73).

2. Same Foreign Executor May Sue for Transfer of Property

from Personal Representatives But Not for Any Other Purpose.

Although a foreign executor is authorized by said sec. 6, to sue in equity for the transfer of property of his testator in the hands of a personal representative in this state, he is not thereby authorized to maintain a suit in this state for any other purpose, (p. 75).

3. Same Foreign Personal Representative Can Only Sue in this

State When Empowered by Statute.

Unless empowered so to do by a statute, a foreign personal representative cannot sue in the courts of this state. (P. 76).

4. Same Nonresident Suing in\ this State as Foreign Executor

or Trustee Must Comply With Requirements of Our Practice., Though, a person acting in the dual capacity of executor and trustee of an estate may sue in the courts of this state, as trustee, he must comply with the requirements of our practice in order to institute and maintain his suit. (p. 76).

5. Same Executor Suing as Trustee to Recover Property Must

Follow Statute as to Naming Necessary Parties Defendant.

A paper filed by a foreign executor against a resident guardian of a non-resident infant, and a lessee, as a petition for transfer to the executor in his capacity as trustee of his testator's estate, of funds in the hands of the guardian, arising from gas well rentals, as aforesaid, and for adjudication of his right to rentals to accrue from the lease in the future, upon the theory of superior title in the executor and trustee, which, although praying relief against the guardian and lessee, does not in any way name either of them as a defendant, nor pray that either of them be made such, nor that either of them be require'd to answer it, cannot be treated as a sufficient bill in equity as to them. (p. 76).

6. Same Bill Held Defective for Not Making Infant Party.

To a bill having for its purpose, the relief above indicated, the infant is a necessary party, and, if the paper were otherwise sufficient as a bill, it would be defective for its failure to make him a party, (p. 77).

7. Appearance Demurrer of Guardian and Lessee to Paper Re-

garded as a BUI Held Not a Waiver of Process.

The appearance and demurrer of the guardian and lessee to such paper regarded as a bill, does not amount to a waiver of process, and, no process having issued upon it, there is a total lack of jurisdiction of the persons of the parties interested adversely to the petitioner, (p. 77).

(Lynch, Judge, absent.)

Certified from Circuit Court, Wetzel County.

Action by Ross J. Winning, as executor of the estate of Edward D. Winning, deceased, against the Silver Hill Oil Company and others. Demurrer to petition by executor sustained, and cause certified.

Affirmed.

A. C. Chapman, for plaintiff. Thos. H. Cornett, for defendants.

poffenbarger, Judge:

The decision certified for review in this cause involves an inquiry as to the right of an executor appointed in the State of Ohio, under a will probated in that state, and who is not shown to have qualified as executor in this state, nor given any bond in the state in which he was appointed, to have awarded and transferred to him, certain property, rentals arising from an oil and gas lease, some of which have already accrued and been paid to the guardian of a non-resident infant, who is a devisee and legatee under the will, ancl to obtain an adjudication of his right to future rentals. That inquiry has been raised and submitted by an order of the court below, sustaining a demurrer to the petition filed by the executor for such award or transfer and adjudication.

The will designated two persons for executors, a son of the testator and a friend, the latter of whom is dead. It also dispenses with the requirement of any bond.

Dated February 27, 1908, probated in Jefferson County, Ohio, May 15th, 1909, and recorded in the clerk's office of the County Court of Wetzel County, AVest Virginia, August 11, 1910, the will first provides for payment of the debts and expenses of the last sickness and burial of the testator. The second item reads as follows: "It is my wish that the residue of my estate after settling my indebtedness shall be held by my executors hereinafter named for the term of six years after my decease and that they shall have full authority to use revenues derived from the estate as their judgment may determine to be for the interest of their heirs; and if any effort is made by any one claiming to have an interest in the estate, to interfere with the provisions of this item or any other provision of this will, then such interest or interests shall be forfeited to the other heirs." Subject to this provision, the third item disposes of the testator's estate as the law would have disposed of it in the absence of a will. The fourth item charges one of the interests with the sum of $350.00 in favor of some of the other beneficiaries.

The application for the transfer of the sum in question was resisted and has thus far been defeated by James B. Clark, guardian for Gerald W. Townsend, an infant and resident of the State of Illinois, and the Silver Hill Oil Co., a corporation. Townsend was a minor at the date of the filing of the petition, but he attained his majority before the decision in question was rendered. The object of the petition was to require the guardian of Townsend to pay over to the petitioner a certain sum of money, which had come into his hands from gas well rentals on a tract of land in which Townsend owned an undivided eighth interest by virtue of the will, and to obtain an adjudication of the right of the petitioner to future rentals accruing on the lease.

The estate of Edward D. Winning, the testator, included a tract of land situated in Wetzel County and containing four hundred and fifty acres. By an agreement made Oct. 10, 1918, all of the devisees of his will, except' Gerald W. Townsend, joined in a lease of said tract of land to the Silver Hill Oil Co., for oil and gas purposes. At about the same time, Townsend's guardian, appointed in Wetzel County, instituted and prosecuted to a final order, a summary proceeding to obtain authority to lease his undivided interest in the land to the same corporation, and, after having obtained such authority, he executed the lease and this action on his part was ratified and confirmed by the court. This lease, as well as the one executed by Townsend's co-owners, provided for the usual one-eighth of the oil, as royalty, and an annual cash rental for each producing gas well, the first one $300.00 per year, payable in four equal installments, and the other $37.50, payable in like manner. At the date of the filing of the petition now under consideration, there were three producing gas wells on the property and some rentals had been paid to the guardian, under the lease of Townsend's interests, effected as aforesaid.

The ostensible and avowed purpose of the petition, is effectuation of a transfer of funds, under the provisions of sees. 3, 4 and 6 of ch. 84 of the Code, is clearly not within any of those provisions, because it discloses a state of facts to which their terms are not applicable. The 3rd and 4th sections contemplate the transfer of funds or property in the hands of a guardian or committee appointed in this state, belonging to a minor or insane person residing out of it, and funds of an infant, insane person or cestui que trust in- vested, or required to be invested, under the direction of a court of this state. They also contemplate the filing of a petition by a guardian, committee or trustee lawfully appointed and qualified in the state or country of the residence of said infant, insane person or cestui que trust. This petition was not filed by any person falling within these designations. The petitioner is an executor of a will, appointed in Jefferson County, Ohio, and the infant in question resides in the State of Illinois. These two provisions relate to transfers of funds and property in definite, specific and...