Leach v. Buckner

19 W. Va. 36, 1881 W. Va. LEXIS 3

• Court: West Virginia Supreme Court
• Decided: December 3, 1881
• Status: Published

Opinion

JOHNSON, President,

announced the opinion of the Court.

The depositions clearly show, that the administrator received $1,500.00 purchase-money from Byrd, with which he failed to charge himself; and that he had given himself credit for $500.00, as paid to Mrs. Mary Leach, to which he was not entitled. The main question that demands our consideration in this cause is: Did the court of chancery in this State have jurisdiction to surcharge and falsify the'account in the manner, in which it was done? If it had, we see no error in the decree, so far as it ascertained, that the defendant, Buckner, was indebted to the estate of his intestate in the amount ascertained in the decree. To show that the court had no authority or jurisdiction to review the settlement made in Ohio, counsel tor appellant cites Voorhees v. Bank of United States, 10 Pet. 449; Fisher v. Bassett, 9 Leigh 119, Judge Tucker’s opinion 131; Cox v. Thomas’s Adm’x, 9 Gratt. 323, Judge Allen’s opinion 325-6; Gibson v. Beckham, 16 Gratt. 321; Lancaster v. Wilson, 27 Gratt. 624 ; Hall v. Hall, 12 W. Va. 1.

Voorhees v. Bank of the United States was an action of ejectment, which was tried in the Circuit Court of the United States for the District of Ohio ; and upon the trial the validity of an attachment, issued by the state court and under which the land was sold, was questioned. The Supreme Court says : “This was the judgment of a court of competent jurisdiction on all the acts preceding the sale, affirming their validity in the same manner as the judgment had affirmed the existence of a debt. There is no principle of law better settled, than that every act of a court of competent jurisdiction shall be presumed to have heen right, until the contrary appears.”

In Fisher v. Bassett et als. it was held, that where a county or corporation court grants administration of the estate of a foreigner, who died abroad, and who had no residence in the county or corporation at the time of his death and had no estate of any kind there, so that in truth the state of facts is not such as to give the court jurisdiction to grant administration in the particular case according to the provisions of the statute, such a grant of administration is not void but only a voidable act, and therefore rightful acts of and fair dealings with the administrator consummated, before his administration is revoked or superseded, cannot be impeached.

In Cox et als. v. Thomas’s Adm’x et als., 9 Gratt. 323 it was held, that a j udgment of a circuit court upon a notice and motion in favor of a creditor against a high sheriff or his administra-trix for the default of his deputy in not paying over money collected on an execution, which issued from the county court, is conclusive of the jurisdiction of the court, unless reversed on appeal; and its validity cannot be called into question by the deputy or his sureties on a motion by the high sheriff or his administratrix against them founded on said judgment.

In Gibson v. Beckham et als., 16 Gratt. 321 it was held, that where a court has cognizance of the subject-matter, its judgment, though it may be erroneous, is not void. It is binding, until it is set aside or reversed, and cannot be questioned ineidently, acts done and bonds taken under it binding the obligors.

In Lancaster v. Wilson, it was held, that a judgment of a court of record could not be impeached in another action except for want of jurisdiction in the court or fraud in the parties or actors in it.

In Hall v. Hall it was held, that where a judgment or decree of a court of general civil jurisdiction is offered in evidence collaterally in another suit, its validity cannot be questioned for errors, which do not affect the jurisdiction of the court. The counsel also relies on the following authorities: Vaughn v. Northop, 15 Pet. 1; McLean v. Meek, 18 How. 16; Wilkins v. Ellet, 9 Wall. 740; Andrews v. Avory, 14 Gratt. (Judge Moncure's opinion) 239-249; Whart. Con. L. 666 et seq.; 2 Kent. Comm. 421-9; Story Eq. Pl. 179.

In Vaughn v. Northop, it was held, that every grant of administrators is strictly confined in its authority and operation to the limits of the territory of the government, which grants it, and does not de jure extend to other countries. It cannot confer as a matter of right any authority to collect assets of the deceased in any other State ; and whatever operation is allowed to it beyond the original territory of the grant is a mere matter of courtesy, which every nation is at liberty to yield or to withhold according to its own policy and pleasure with reference to its own institutions and the interests of its own citizens.

In McLean v. Meek, 18 How. 16, it was held, that the record of a debt against an administrator in our State is not sufficient evidence of the debt against the same administrator of the same estate in another State.

In Wilkins v. Ellett, 9 Wall. 740, it was held, that a voluntary payment of a debt to a foreign administrator was good as against the claim of an administrator duly appointed at the domicile of the debtor, in which last place the debt was paid; there having been no creditors of the intestate in this last place, nor any persons there entitled as distributees.

In Andrews v. Avory et als., 14 Gratt. 229, it was held, that where an administrator appointed in Virginia, whose intestate lived and died in North Carolina and left no estate in Virginia, went to North Carolina and without qualifying there took possession of the assets and brought them back to Virginia, his sureties in Virginia were liable for his faithful administration of these assets.

It is not necessary to refer to the other authorities cited.

While not disputing the correctness of the principles laid down in the foregoing decisions, the counsel for appellees insists, that they do not cover the case made by the bill and have no application to a case like the one at bar, and he cites a number of pertinent cases, which we will proceed to review.

If there is no relief in a case like the one before us without going to the State of Ohio to purge a settlement of a confessed, as he thinks, fraud upon the distributees of his intestate’s estate estate, it would be inconvenient to say the least. The principle is well settled, that the ex parte settlement of a fiduciary is only prima facie correct, and parties interested may file a bill to surcharge and falsify the account so settled. Anderson v. Fox, 2 H. & M. 261; Preston v. Gressom, 4 Munf. 110; Newton v. Poole, 12 Leigh 112; Peale v. Hickle, 9 Gratt. 437; Corbin v. Mills, 19 Graft. 438; Shugart v. Thompson, 10 Leigh 434; McGuire v. Wright, 18 W. Va. 507. Upon this question there is no doubt, and it will be borne in mind, that the partial and final settlements made by the defendant Buckner before the probate court of Vinton county, Ohio, like settlements made under our statute before a commissioner are ex parte settlements and nothing more.

In Dickerson v. Hoomes’s adm’r et als., 8 Graft. 410, Moncure, J., in delivering the opinion of the court said : “ The question is, whether the land descended to them in Kentucky is assets, and whether they ought to be bound for the value of said land descended to them, at least to the extent to which it actually came to their hands. I think this question should be answered in the affirmative. It is undoubtedly true, that real estate or immovable property is exclusively subject to the laws of the government, within whose territory it is situate, and that no writ of sequestration or execution or any order, judgment or decree of a foreign court can be enforced against it. But I think it no less true, that equity, as it acts primarily in personam and not merely in rem. may, where a person, against whom relief is sought, is within the jurisdiction, make a decree upon the ground of a contract or any equity subsisting between the parties respecting property situated out of the jurisdiction.”

In Powell v. Stratton et als., 11 Gratt., it was held, under the circumstances, that a person, who had qualified as administrator of an estate in Mississippi, should be held in Virginia to account for his administration.

Marshall, C. J., in Massie v. Watts. 6 Cranch 158, said. “ This suit having been originally instituted in the court of Kentucky for the purpose of obtaining a conveyance for lands lying in the State of Ohio, an objection is made by the plaintiff in error, who was the defendant below, to the jurisdiction of the court, by which the decree was rendered. Taking into view the character of the suit in chancery brought to establish a prior title originating under the land-law of Virginia against a person claiming under a senior patent, considering it as a substitute for a caveat introduced by the peculiar circumstances attending these titles, this'eourt is of opinion, that there is mucb reason for considering it as a local action, and for confining it to the court sitting within the state, in which the lands lie. Was this cause therefore to be considered as involving a naked question of title ? Were it, forex-ample, a contract between Watts and Powell, the jurisdiction of the circuit court of Kentucky would not be sustained. But where the question changes its character, where the defendant in the original action is liable to the plaintiff, either in consequence df contract, or as trustee, or as the holder of a legal title acquired by any species of mala jides practiced on the plaintiff, the principles of equity give a court jurisdiction, wherever the person may be found, and the circumstance, that a question of title may be involved in the inquiry and may even constitute the essential point, on which the case depends, does not seem sufficient to arrest that jurisdiction.”

In Tunstall et al. v. Pollard’s adm’r, 11 Leigh 1, it was held, that an executor having taken probate of a testator’s will and letters testamentary in England, and collected the assets of testator’s estate there and brought them with him into "Virginia but having never qualified as executor in Virginia is liable to be sued by the legatees in the court of chancery in Virginia for an account of his administration and for the legacies that remain unpaid. After an elaborate review of the authorities, Tucker, President, says : “ Upon a full review of the whole subject I am of opinion, that justice, convenience and necessity require a recognition of the right to sue an executor who has qualified abroad, if he comes within the jurisdiction bringing the assets with him; and no authority sustains the contrary proposition.”

In McNamara et ux. v. Dwyer et al., 7 Payne 239, it was held, that the court of chancery has jurisdiction to compel a foreign executor or administrator to account for the trust-funds, which he received abroad and brought with him into this state ; and that, too, without taking out letters of administration on the estate of the decedent here. See also Campbell, adm’r, v. Tousey, ex’r, 7 Cow. 64; Brown v. Brown, 4 Ed. Chy. 343; Gulick, adm’r, v. Gulick et al., 33 Barb. 92.

The element of fraud comes into the case at bar and relieves it of much of the difficulty, that might otherwise surround it. A judgment or decree either foreign or domestic fraudulently obtained may be set aside and much more easily a fraudulent ex'parte settlement of a fiduciary. 2 J. J. Marsh. 405; Lazier v. Westcott, 26 N. Y. 146; Lancaster v. Wilson, 27 Gratt. 624; Boulton v. Scott’s adm’r., 2 Green (N. J.) 231. In such a case it is not necessary for such purpose to go to the State, where the party fraudulently obtained the decree, but such suit may be properly brought, where the party resides. It is expressly charged in the bill, that the defendant, Robert Buckner, falsely and fraudulently represented to the probate court of Vinton county, Ohio, that he had accounted for the balance of the purchase-money due from R. A. Byrd, in a settlement which he had made in West Virginia, and that be imposed upon said court a false receipt for the $500.00, for which he there received credit for that sum as having been paid to the widow, Mary Leach. These charges in the bill he does not controvert, and for the purposes of this suit they must be taken as true, although he was specially called upon in the bill for a discovery, and after ample opportunity had, he fails to answer the bill, and put the plaintiffs on proof of the charges of fraud explicitly made against him. It thus appears, that he went to Ohio and fraudulently imposed a false settlement upon the probate court of Vinton county, Ohio, and by said false and fraudulent settlement brought the estate there in debt to him over $1,700.00, and then with his illgotten gains came back to West' Virginia, where not only himself but a number of the plaintiffs live,, and where he had been appointed and qualified as administrator of the estate of his intestate, and went before a commissioner and charged this false balance, so falsely and fraudulently obtained in Ohio against the estate, and then coolly folds his arms, refuses to answer the charges made against him and says : “You can’t enquire here into my settlement made in Ohio.”

Fraud vitiates everything it touches; and a party guilty of fraud cannot claim protection here because his fraud was committed in another State. The court had jurisdiction and had a right to surcharge and falsify the account settled before commissioner Shaw, and in doing so show that the balance of over $1,700.00 falsely and fraudulently obtained before the probate court of Ohio was false, and to show what he should have charged himself with there, and what he should have credited himself with there as charged in the bill, in order to see what should have been the balance there, and what should be the state of the account here. This was done and properly done in this suit and the amount of the administrator’s indebtedness to the estate, when the account was corrected according to the bill and proofs, was ascertained. The defendant Buckner being an ancillary as well as domicilliary administrator, there can be no doubt about the correctness of the position we have assumed.

Was it error to decree, that the whole of the indebtedness of the defendant should be paid to the plaintiff? It is insisted by counsel for appellees, that if it was an error, it will not justify a reversal of the decree, but the decree in that case should be corrected and affirmed; and he cites the following authorities: Henly v. Menefee, 10 W. Va. 782; Richards v. Fisher, 8 W. Va. 55; Handley v. Snodgrass, 9 Leigh 484; Mott v. Carter, 26 Gratt. 127; Graham v. Pierce, 19 Gratt. 29. But none of these authorities apply to a case like this. It does not appear in the record, whether the heirs ought each to receive an equal share of this amount or not, nor what amount Buckner or his wife ought to receive therefrom. By an exhibit filed with the bill it appears, that a number of the plaintiffs owe debts, evidenced by notes, to the estate, which may have been and probably were settled in another manner, but it is impossible to tell from the record as it now is, what is the fact as to said settlement. We cannot correct the decree and affirm it under the circumstances of this case.

So far as said decree ordered the whole of said sum of money to be paid to the plaintiff, it is erroneous and must be reversed with costs to the appellant, to be paid by the ap-pellees other than Louisa Buckner and the unknown heirs of John Leach; and in all other respects said decree is affirmed and this cause is remanded to the circuit court of Wood county with instructions to cause proper distribution to be made of said sum of money to those entitled thereto, and in the proportion to which they may be thereto entitled.

Judges Haymond and Green Concurred.

Decree Reversed in Part. Cause Remanded.