Rowland v. Rowland

11 W. Va. 262, 1877 W. Va. LEXIS 35

• Court: West Virginia Supreme Court
• Decided: September 10, 1877
• Status: Published

Opinion

Green, PRESIDENT,

delivered the opinion of the CoUL’t:

The first question presented to this Court is: ought not the bill to have been dismissed upon the demurrer?

The plaintiffs had no right, under the will of their father, to demand the legacies left them, till they attained, respectively the age of twenty-one, or married. This suit was instituted before either of them attained that age, or was married. Must it, therefore, be dismissed upon demurrer ? If the sole object of the bill is to enforce the payment of these legacies to them before they were due, 'the bill must be dismissed. This proposition seems so clear, as not to require authority to sustain it; but in the case of Swope v. Chambers, 2 Gratt. 320, the court expressly decided, “that a legacy being made payable on the legatees attaining the age of eighteen, or marrying, the legatee cannot maintain a suit to recover it before the happening of the one or the other of these events.” In that case the court say : “the counsel of the infant, conceding that the infant was not entitled, at the institution of the suit, to demand and receive the legacy, indicates the institution of the suit as a proper measure for the preservation oí the legacy, until one or the other event shall happen, on which it will be demand-able and payable. A sufficient answer to this is, that such is not the nature or object of the suit.. It is brought to recover the legacy, not to secure the fund; and being so, it was prematurely brought.”

I feel fully justified in adopting this language in the . case before us. There is not one word in this bill which looks ti> the preservation of the legacies, until one or the other event happens on which they are payable; there is no intimation in the bill that these legacies are not entirely safe, or that the sureties of the executor were not able to pay them, or would not probably, or possibly, even, continue able to pay them. In fact there is not one word in the bill, from which we would infer, that they were not already due, when this suit was instituted, except that from a copy of the will, filed with the bill as a part thereof, it appears that they were not due; and if we were permitted to look at the evidence in the cause, it would be seen, that there is not a particle of evidence tending even to sustain a bill, filed for the preservation of these legacies, till they were due. There is no evidence to show that their payment was not, and is not, perfectly safe.

It is insisted however, that the case before us differs from the case of Swope v. Chambers, 2 Gratt. 320 in this, that in that case the suit was to recover a specific pecuniary legacy requiring no re-settlement of the executor’s account. Whereas in this case, the suit is for two-thirds of the personal estate of the testator, to ascertain the amount of which it was necessary to settle the entire executorial account; and in so doing, to surcharge and falsify an ex parte settlement, which had been made by the executor, and which by the law was to be regarded as prima facie correct-, subject to be surcharged and falsified only by a suit inproper time: Code of W. Va., chapter 87, section 22, p. 513. There is certainly nothing on the face of'thebill to indicate that the main object or end of this suit was to surcharge and falsify this ex parte settlement. On the contrary, the sole object and purpose of the suit appears by the bill to be, to enforce out of the executor and his sureties in his official bond, the payment of the legacies of the plaintiffs. To effect this object, the statute made it absolutely necessary to surcharge and falsify this ex parte settlement, for if not surcharged and falsified this settlement showed on its face that there was nothing which was due, or ever would be due the plaintiffs. The end of the suit was the enforcement of the payment of these legacies, as a necessary means to this end, and only as such means, the plaintiffs ask, that the executor may be required to settle his accounts before the court, and proceed as required by law to surcharge and falsify his ex parte settlement. The bill is in all respects precisely like an ordinary bill to enforce the pay-men^ °f legacies, where the ex parte settlement shows oil its &0<3> that the executor has no estate in his hands, wherewith to pay off legacies. There is not one word in the bill from which we could infer that the object or end of the bill was not to enforce the payment of that legacy, but merely to surcharge and falsify the ex parte settlement of the executor. If this was its object, why was not the suit brought against the executor alone? He would have been the only necessary or proper party to such suit. Why were his sureties in his official bond made parties; and why especially was John A. Douglass, trustee made a party ? Certainly with no other object than enforcing the payment of these legacies. Surely if the object of the bill was simply to surcharge and falsify the settlement, Douglass, the trustee, ought not to have been a party, as with the settlement of the executorial accounts he was in no manner concerned. The statute, above referred to, provides that a suit to surcharge and falsify an executorial account must be brought in proper time. But this does not in any case impose on the legatee an obligation to bring such suit before his legacy is due. If such suit is brought in a reasonable time after his legacy is due, it is brought in proper time. Why should the legatee be either required or permitted ordinarily to bring such a suit before his legacy is due ? Though the ex parte settlement be erroneous, its errors may be rectified in a second ex parte settlement, or the executor may when the legacies becomes due, settle with the legatee a larger amount, than by the ex parte settlement appears to be in his hands. Ordinarily no injury results to the legatee from the admitting of the improper ex parte settlement to record until his legacy becomes due, and the executor, relying on such improper ex parte settlement, refuses to pay to the legatee the full amount he is justly entitled to. If therefore a legatee is permitted in a particular case, to bring a suit to surcharge and falsify an ex parte settlement of an executor, before his legacy is due, it must be for some good reason; the existence in the particular case of extraordinary facts, which would render it necessary and proper, that the court should inquire into and rectify the settlement at once. It might be proper, if many years would elapse before the legacy became due,- and the evidence on which the ex parte settlement was based during the lapse of these many years, would probably be lost, by the death of parties or otherwise ; or where the executor had taken steps to render the obtaining of such evidence, after the legacy became due, difficult or impossible ; or when any other circumstances existed, which would render it much more difficult or impracticable to surcharge and falsify the ex parte settlement after the legacy became payable. And the legatee having generally no right to institute such a suit, till his legacy was payable, if he institute it before he must be required to set forth in his bill the circumstances, which justify him in bringing such suit. No such circumstances are alleged in this case, and none appear in the voluminous evidence taken in the cause. Neither the bill nor proof show how long a time would elapse before the legacies would be payable, nothing is shown but the simple fact, that pending the suit one of the legacies became payable. For anything which appears in the bill, the legacies, or one of them, might have been payable in a very short time after the instituting of'the suit; there is no allegation in the bill, and no proof (hat the evidence, on which the ex parte settlement was based was likely to be lost before the legacies became due; or that the executor had fraudulently or otherwise taken steps to suppress the evidence before the legacies became due; on the contrary the evidence was returned with the ex parte settlement. In truth not a single fact is alleged in the bill, or proven in the case, which even tends to show that the ex parte settlement could not have been surcharged and falsified as effectually after the legacies became due as before they were payable. The demurrer to the bill should therefore have been sustained, and the bill dismissed at the costs of the plaintiffs. It is true, that in this case the exhibit filed with the bill, the will "of James W. Rowland, taken in connection with the evidence, as understood by the court below, would show that the plaintiffs had, when they instituted this suit, a cause of action. But the action, which they might, have had a right to bring was not only not similar to that set forth in their bill, but the existence of the right to bring such action was inconsistent with -the positions of the bill. The plaintiffs, while infants and unmarried, had a right to demand a support out of the funds in the hands of their father’s executor, assuming that he had sufficient funds in his hands belonging to them, to enable him out of thé interest to support them. This right is conferred on them by the fifth clause of said will quoted above. But the plaintiffs by their bill have not only not sought redress of this sort; but in their bill have disclaimed any right to make such a demand of the executor or his sureties. For in their bill they object to the allowance to the executor in his accounts of any charge for their support while infants, saying that it was a matter, which belonged to their guardian and not to him. Ordinarily, if the bill shows that the plaintiffs have just cause of action, the bill ought not to be dismissed when a demurrer is sustained; but leave should be given to amend the bill: Welton v. Hutton, 9 W. Va. 339; Baker v. Baker, &c., 3 Munf. 222, and Jameson’s adm’r v. Deshields, 3 Gratt. 13. But here the relief, to which the bill shows the plaintiffs are entitled, is not only different, but inconsistent with the case made by the bill. No leave to amend should be granted; as the setting forth of such cause of action would be really instituting a new suit, and not amending a bill in a suit already brought.

The decree rendered in this cause is assailed for many errors, alleged to exist in it upon its merits by the appellants, and the appellees have assigned counter errors, alleged to exist to their prejudice. But I deem it improper to express any opinion on the merits of the case. This suit having been prematurely brought, must be dismissed without prejudice to the plaintiffs, to renew it when the time has arrived when they will have a cause of action. And when so renewed, the case may on the evidence be varied from what is now presented; and the action of the court below ought not, in such new case, to be influenced by any expression of opinion by us on the merits of the case, as it now appears.

The decree of the circuit court of May 9, 1876 must be reversed and annulled, and the appellants must recover of the appellees, Creed Terry and Mary F. Terry and Louisa Rowland, their costs expended in this Court. And this Court proceeding to render such decree as the circuit court of Mercer county should have done, doth sustain the demurrer to the bill, and dotli adjudge, order and decree that bill of the plaintiffs be dismissed, and that the defendants recover of the plaintiffs their costs expended in the circuit court of Mercer county in said cause, but the dismissal of said bill is without prejudice to the institution by the plaintiffs or either of them, of another suit against the defendants or any of them, when the plaintiffs or either of them shall attain the age of twenty-one years, or marry, to surcharge and falsify the ex parte settlement of the executorial accounts of Kensie Rowland, executor of James W. Rowland, and to recover the amount of the legacies left them by the will of their father.

Decree Reversed, and cause dismissed without prejudice.