Rexroad v. Wells ( 1878 )

Green, President,

delivered the opinion of the Court:

The only question involved in this case is : Did the court err in sustaining the demurrer to the plaintiffs bill and amended bill and dismissing them at his costs ?

If the plaintiff was ombarassed in the performance of his duties, as administrator with the will annexed of Isaiah Wells, by reason of doubt as to the meaning of the will, he had a right to lile his bill to ask the court to settle in advance the construction of the will, if it was doubtful, and thus save the hazard of litigation, which might arise from construing the will himself and acting on such construction.

In the actual condition of the estate when this suit was instituted, as shown by the bill and amended bill, could tbe administrator, when this bill was filed, have been really so embarrassed ? The real condition of the estate, as shown by the statements of the bill and amended bill, was materially different from what the amended bill states it to be. This arises from mistakes made in the amended bill, which have been pointed out in the statement of the case.

The following is the true condition of thé estate, as ascertained from the facts stated by the plaintiff in the amended bill. If we regard the debts due from Benjamin Wells as capable of being made, and the debt due from George W. Wells as not really a debt, which it was not, as his note was directed to be cancelled and surrendered, the entire personal assets amounted on November 20, 1876, to $7,335.38, after the deduction of insolvent debts due the testator, estimated by plaintiff as $192.49. .The total amount of debts due from the testator as of that date, excluding the debt of $183.93^1116 the estate, and for which the testator was the surety of Benjamin Wells, was $1,192.05], leaving of personal estate, after the payment of these debts, $6,143.33], of which the widow as distributee was entitled to one-third, or $2,047.78, which would leave a balance as of November 20,1876, wherewith to pay the legacies aud cost of administration, of $4,095.55]-, the interest on this to about May 1,1877, when these legacies became payable, that is to one year after the death of the testator, would be $108.14-]-, making $4,204.00, out of which legacies had then to be paid, amounting to $2,985.00, and, after this payment, there would still be a personal estate in the hands of the administrator of $1,219.19, to pay the costs of administration, a sum much more than sufficient for that purpose.

If however we take the supposition of the plaintiff, as stated in the amended bill, that of the debts, due the estate from Benjamin Wells, only $800.00 could be made out of $1,325.77, this would diminish the assets of the estate $525.77 ; but as by the will a legacy of $300.00 is given to Benjamin Wells, this must be substracted therefrom, as it would be paid out of his indebtedness to the estate, which would leave as the actual diminution of the assets of the estate $225.77; and if we further suppose, that the administrator will have to pay the debt, due the State of West "Virginia, amounting to $183.93 exclusive of interest, for which his testator was the surety of Benjamin Wells, it would make a difference of the balance in the hands of the administrator of $410.71, which may be increased about $100.00 by interest and costs. Call it $509.00, and it would still leave, after the payment of all debts, the distributive share of the widow and all legacies, the sum of $700.00 in the hands of the administrator to pay the costs of administration, a sum in all probability more than sufficient to pay such costs.

This calculation too is based on the supposition, that all the debts, which the administrator supposes to be insolvent, are lost, and that all the claims, which have been presented against the estate are just, and will have to be paid in full. I think therefore it is clear, that in all probability, from the statements made in the bill, the administrator cannot be embarrassed from having to construe this will, as he will by his own showing have enough of personal assets in his hands, 'to perform all the duties imposed on him as administrator; and that the entire real estate will remain to be divided among the children of the testator other than Wm. T. Wells, as directed by the testator’s will. He can have therefore no interest in obtaining the opinion of this Court, whether under a state of facts, never likely to occur, he would be authorized to sell any portion of the real estate.

The court therefore did not err in sustaining the demurrer to his bill and amended bill, and dismissing the the same at his cost. Even had the condition of the estate been much worse than it is, he would not have been justified in instituting such a suit, at the time ho instituted the same. It was brought in less than a month, after he qualified as administrator with the will annexed, and therefore', at a time when it is impossible to suppose that he could have felt any embarrassment from not knowing the true construction of the will, had there really been any difficulty in its construction.

Had there been such difficuly as he suggests, it would have been his duty to have collected the assets of the estate, and paid all its debts ; if then there was an insufficiency of assets in his hands, to pay all the legacies and the legatees and devisees had not settled the whole matter among themselves, which it is almost certain they would have done, and some legatee had insisted on a sale of the land to pay the small balance, which might possibly be due him, it might then have been his duty to have consulted counsel, and if advised, that it was a doubtful question,whether it was his duty under the will to sell the land or not, he might have been justified in bringing this suit; and the court would under the circumstances have overruled á demurrer to his bill, unless it thought, the moaning of the will so clear, as not even then to have justified the filing of such bill.

As the case was presented,-there was not the least necessity for the institution of the suit; it was clearly the duty of the administrator, before instituting the suit, to have had the deed of trust, executed by Benjamin Wells? foreclosed, and by snob sale have ascertained, whether the whole debt due from him could be paid by such sale. There could have been no embarrassment to the administrator, in the performance of his duties, in waiting till after such sale, before the institution of this suit; and it would clearly have beeu improper in the court, to have assumed jurisdiction of this case, simply because the administrator supposed, that this property, when sold, would not pay the debt, on which it was security, by several hundred dollars. Whether this be so, could without the least embarrassment to the administrator, have been definitely ascertained, before instituting this suit. And it ought certainly to have been done.

It is said however by the appellant’s counsel, that the court ought not to have dismissed the amended bill, because the plaintiff had a right to be instructed by the court, whether he should surrender to George W. Wells his note, and also pay him his legacy. It is a full reply to this suggestion to say, that the plaintiff did not ask any instruction of the court in this matter. On the contrary the amended bill shows on its face, that he did not desire any such instruction; for in estimating the assets of the estate, he excludes this note, and in estimating the legacies to be paid by him, he includes the legacy to George W. Wells.'

Again it is said by appellant’s counsel, that the administrator had on the statements of the amended bill a right to file a bill, under the provisions of section 7, ch. 86 of Code of W. "Va. p. 506 ; and that the court, instead of dismissing the amended bill at his costs, ought to have given him leave to file an amended bill again, on the authority of Jameson v. Deshields, 3 Gratt. 5, and Stewart v. Jackson, 8 W. Va. 31. It does not appear that he asked any snch leave ; and this leave had once before been, on his request, granted to him; and it further does not appear from the statements, contained in the amended bill, or otherwise in the case, that the plaintiff was entitled to any relief; and it is only in such case the court ought, according to these authorities, to permit an amendment of the bill, when a demurrer has been sustained. Section 7, ch. 86 of Code of W. Va. p. 506, simply authorized the personal representative of a decedent, when the personal estate of a decedent is insufficient for the payment of his debts, to commence a suit in equity, to subject his real estate to the payment therof in the manner and under the circumstances prescribed in said section.

The amended bill shows, that the personal estate of the decedent was more than three times as much, as was necessary to pay his debts; and of course the administrator could institute no suit under this section. If he could have done, so, it must have been an original suit, and could not have been done by another amended bill in this suit; as the object, sought by it, would have been entirely different from the objects, sought by this bill, and the parties to such suit would have been also different, as shown by the provisions of section 7, ch. 86 of Code of W. Ya.

The decrees therefore of October 20, 1876, and April 26, 1877, must be approved, and affirmed; and the ap-pellees must recover of the appellant their costs in this court expended, and $30.00 damages.

The other Judges CONCURRED.

JudgmeNT Affirmed.