Hustead v. Boggess , 122 W. Va. 493 ( 1940 )

Martha C. Swiger died testate, leaving the residue of her estate "to the descendants per stirpes" of such of her brothers and sisters as should predecease her. Pending the settlement of her estate by a commissioner of accounts, a petition was filed with him by Ada M. Hustead, the lawfully adopted daughter of a predeceased sister, claiming the right, as a descendant of the sister, to share in the residue of the estate. Evidence was taken and briefs filed before the commissioner who ruled against petitioner. She presented her claim, with the evidence theretofore taken, to the county court which construed the will in her favor. The personal representatives of Mrs. Swiger appealed to the circuit court where the county court was affirmed, and then appealed here.

Appellants challenge here, as they did initially before the commissioner, his jurisdiction to construe the will.

Constitution, Art. VIII, Sec. 24, confers on county courts jurisdiction to settle the accounts of personal representatives. Code, 44, articles 2 and 3, provide (a) that a county court shall appoint commissioners of account; (b) that the court shall refer a decedent's estate to such a commissioner to determine the claims against it, the shares of the distributees, and any other matter "necessary and proper" for its settlement; (c) that the commissioner shall return to the court a report listing each claim presented, with the evidence thereon, exceptions, and his allowance or disallowance thereof; and (d) that the court shall pass upon the exceptions, if any, "and make its order thereon." The constitutional jurisdiction of county courts to settle accounts of personal representatives has been held not to include the construction of wills. Page v. Huddleston,98 W. Va. 104, 126 S.E. 579. The statutory duties imposed on a commissioner of accounts, in connection with his statutory subjection to the county court, show clearly the legislative design that he should serve the court in performing its constitutional duties. So, despite his broad powers, as recited in the statute, it must be construed as not intending that he, an auxiliary of the court, should determine questions beyond the jurisdiction of the court. Article 2, above, has been specifically construed as "not intended to afford a means for determining questions pertaining to the right of descent and distribution." Hansbarger v. Spangler, 117 W. Va. 373, 375-6,185 S.E. 550, 552. Accord: Steber v. Combs, 121 W. Va. 509,5 S.E.2d 420. The foregoing decisions have been reviewed and confirmed by this Court in the recent case of In re Estate ofLong, deceased, (opinion handed down September 24, 1940) 122 W. Va. 473,10 S.E.2d 791, wherein it was held that a commissioner was without jurisdiction to settle conflicting claims to a decedent's estate, and a proceeding for that purpose entertained by a commissioner was dismissed here as void ab initio.

Petitioner advances the contention that because the representatives appeared generally in the proceeding before the commissioner they waived the question of jurisdiction. He had no jurisdiction under the law of the subject matter litigated, and such jurisdiction could not be conferred by waiver.Ohio Co. v. Gibbens, 35 W. Va. 57, 12 S.E. 1093; Yates v.Taylor, 47 W. Va. 376, 35 S.E. 24; 33 C. J. Judgments, sections 36, 38.

The judgment is reversed and petitioner's claim dismissed without prejudice.

Judgment reversed; claim dismissed without prejudice.