Colley v. Calhoun

Poffenbarger, Judge: The argument submitted, on this writ of error tacitly, if not expressly, admits the order setting aside the verdict found for the plaintiff and awarding the defendant a new trial, of which complaint is made, stands upon the assumption of invalidity of the plaintiff’s letters . of administration and consequent lack of right to maintain the action brought by him for recovery of money due the estate of Wise Robinson, his intestate. He took out his letters of administration in the eóunty in which Robinson died, Mercer County, but it is urged that the permanent residencé of the intestate was in McDowell County. Being a resident of McDowell, he went to Blue-' field in Mercer, for treatment in a hospital, and there died two or three weeks later. After his death and the appointment of his administrator, the documentary evidence of indebtedness, constituting the basis of this action, was found in his trunk at the place of his residence at the time of his departure for Bluefield. Permanent or legal residence of the decedent in McDowell County being conceded for the purposes of this inquiry, the appointment was not void, but only voidable, and cannot be collaterally attacked or assailed. For the correctness of this holding, it suffices merely to cite the following decisions applying the principle in cases dependent upon strikingly similar facts and circumstances. Tomblin v. Peck, 73 W. Va. 336; Wells v. Simmons, 61 W. Va. 105; Findley v. Findley, 42 W. Va. 381; Starcher v. South Penn Oil Co., 81 W. Va. 587; Cicerello v. C. & O. Ry. Co., 65 W. Va. 439; Allen v. Linger, 78 W. Va. 277. An appointment of an administrator by the county court of a county in which the decedent left no estate, is merely voidable, not void and not open to collateral attack. Fisher v. Bassett, 9 Leigh 119; Andrews v. [401] Avory, 14 Gratt. 229. These two decisions stand upon facts of exactly the same nature as those involved in this case. It is manifestly both unnecessary and improper, to inquire now whether the appointment is voidable.. Being unvacated, it must be treated as valid, for the purposes of this case. The evidence of the indebtedness sued for ¿consists of three receipts for $160.00, $50.00 and $100.00, respectively, signed and delivered by the defendant, as evidence of the receipt of said sums for “safe keeping.” All of them were appraised and endorsed agreeably to the requirements of sec. 12, ch. 85, Code, by appraisers appointed in Mercer County. As the object of these requirements is recorded disclosure of the personal estate of the decedent, for state taxation and other general purposes, the place of the appraisement is not an essential element of the statute. Such disclosure in any county, whether the one in which the property is or not, accomplishes the legislative purpose. If a note, bond or other evidence of debt sued upon is shown to have been appraised by appraisers appointed in the-county of appointment of the administrator, the trial court cannot consistently be required to enter upon a collateral inquiry as to the regularity of the appraisement. The statute itself, in express terms, dispenses with necessity of proof of listing beyond the endorsement of the appraisers. . s Payment was relied upon as the defense and some evidence thereof was adduced, but, in the opinion of the jury, it was insufficient. It included what purported to be a receipt in full, signed by Robinson, but the genuineness of the signature was denied and a letter proved to be in the handwriting of Robinson was put in evidence for comparison. As the jury found for the plaintiff, in the sum of $300.00, they evidently found the receipt was not genuine. All of the apparent errors committed in the course of the trial were to the prejudice of the plaintiff, not the defendant, wherefore they afforded no ground for setting aside the verdict. For the reasons stated, the order complained of will be reversed, the verdict reinstated and judgment rendered thereon. Reversed, and fadgment for plaintiff on verdict.