be wholly dissolved and the plaintiff's bill which purported to construe the will of be dismissed, with costs. William McCoy, deceased, among other things, were reversed, so that the decrees of

GREEN, ENGLISH, and BRANNON, JJ., con- October 23, 1880, and April 26, 1880, entered curred.

McCoy v. McCoy et al.
(Supreme Court of Appeals of West Virginia.
Sept. 14, 1889.)
APPEAL PRACTICE.

1. When a case is reversed by this court, and remanded to the circuit court, because it does not appear affirmatively that the order of publication in the cause had been posted as required by law, if said order of publication had been published and posted as required by law the defect may be cured, after the case is returned to the circuit court, by an affidavit of the party who posted said order being filed in the cause.

2. To confer jurisdiction on this court in a cause where the interest of the party applying for the appeal is merely pecuniary, it must not only appear that the applicant is prejudiced by the decree of the court below, but also that the amount in controversy exceeds the value of $100, exclusive of

costs.

(Syllabus by the Court.)

Appeal from circuit court, Pendleton county.

A. B. Parsons, for appellants. Flick & Westenhaver and Frank Woods, for appel

lee.

in the cause after the same was remanded, are the only decrees complained of by petitioners; one of which directs a commissioner to ascertain and report to whom the funds in the suit belong, the value of any interest owned by any of the defendants except William McCoy, and directing, also, a settlement of the accounts of Isaac P. Boggs as receiver in said cause; and the other decree confirming the report of said commissioner, which report appears to have been so confirmed without exception. The first error relied on by the petitioners for this appeal is stated to have been in referring the cause to a commissioner, and adjudicating the rights of the parties, without requiring an amended bill filed, as mentioned by this court in the decision of the case, to bring all the parties in interest before the circuit court. Now, while it is true the case was remanded in order that proper parties might be made, said order was made under a misapprehension in regard to the manner in which the order of publication against the absent defendants had been executed; it not appearing affirmatively that said order had been posted as required by law; but after said cause was remanded, and came again into the circuit court, the ENGLISH, J. This cause was before this proof of the posting of said order was supcourt in the name of McCoy's Executor v. plied by the affidavit of Charles P. Jones, McCoy's Devisees and others in the year 1876, the deputy-clerk, who swore that he per(9 W. Va. 443,) and at the August term of sonally posted a copy of said order of pubthe court in that year was remanded to the lication on the front door of the court-house circuit court of Pendleton county, in order of Pendleton county, as required by law. that proper parties might be made thereto, The mandate, it is true, directed that the in order to have a proper hearing and de- cause be remanded to the circuit court that cision of the cause according to the rights proper parties might be made thereto; but of the several parties. After the mandate the only parties mentioned in the opinion of had been entered in said circuit court, and the court as not having been properly conit was made apparent to said court that vened were the non-resident defendants, and the necessary parties had been properly con- this defect was cured by the affidavit of C. vened, a decree was rendered in said cause P. Jones, the deputy-clerk, which rendered on the 26th day of April, 1880, directing a further proceedings, by way of summons or commissioner to ascertain and report to publication, unnecessary. The proper parthe court-First, to whom the funds in said ties thus having been convened, I can see no suit belonged; second, what the value of error in the decree of April 26, 1880, directany interest is, owned by any of the defend- ing a commissioner of the court to ascerants except William McCoy; third, a settle-tain "to whom the funds in this suit bement of the accounts of Isaac P. Boggs as longed, and the value of any interest owned receiver in said case, etc. On the 23d day by any of the defendants;" and, the account of October, 1880, a decree was rendered in thus directed having been reported and consaid cause confirming the report of Frank firmed without exception by the defendants. Anderson, the commissioner to whom said the findings of the commissioner have bematter of account was referred, without come a part of the record, to which we exception, and ascertaining that the entire must look to ascertain the amount of interamount of money in the hands of the gen- est the appellants are entitled to in the eral receiver of the court on the 18th day of cause. In the case of Neal v. Van Winkle, 24 September, 1880, to the credit of said suit, W. Va. 401, it has been held: "To give this was $886.08, and that none of the petition- court jurisdiction in a cause involving maters for an appeal in this cause have any in- ters simply pecuniary, the record must terest in said funds in the hands of said re- show, not only that the party complaining ceiver except Lloyd Wilson and James Wil- has been prejudiced by the decree or judgson, and that their shares are only worth ment of the inferior court, but that the $5.35 5-7 each, and only two of the appel- amount in controversy in this court exceeds lants, viz., Lloyd Wilson and James L. the value of $100, exclusive of costs;" and Wilson, appear to be entitled to that in the case of Rymer v. Hawkins, 18 W. Va. amount. When this cause was remanded to 309, it is held that the matter of controversy the circuit court of Pendleton county, in in the suit, and upon which the decree was August, 1876, the decree of April 18, 1872, con- rendered, must not only be of the value of firming the reports of commissioners, and $100, exclusive of costs, but the controversy the decree of April, 1872, designated in the in relation to the matter of that value must printed record as the "final decree," and be continued by the appeal to give the court

of appeals jurisdiction. See, also, Railroad | On the day mentioned in said notice the Co. v. Foreman, 24 W. Va. 662, where the parties appeared before the justice, and the same has been held. It is true that Ben- defendant moved to quash the said execujamin McCoy, one of the appellants, has pre- tion, which motion the justice overruled, sented upon the trial of this appeal his affi- and thereupon the defendant tendered an davit that the amount in controversy in appeal-bond, and asked the justice to grant this suit, exclusive of interest and costs, ex- him an appeal to the circuit court of said ceeds the sum of $100, but he states no facts county, but the justice refused to grant by which the correctness of the statement the appeal, and entered judgment against in his affidavit may be tested and ascer- the defendant for costs. Within 90 days tained; neither does it appear from the rec- thereafter the defendant, upon his petition ord or from said affidavit that the interests alleging the refusal of the justice to allow of the appellants are of such an amount him an appeal, was granted an appeal by that the controversy in relation to the mat- the judge of said circuit court. This apter of that value will be continued by the peal was duly docketed in the said court, appeal. And it further appearing from said and afterwards, on July 20, 1888, it was, commissioner's report, which has been con- on the motion of the plaintiff, Lowther, firmed without exception, and has thus been dismissed by said court upon the ground acquiesced in by said Benjamin McCoy, that that it had been improvidently awarded, he has no interest in the subject-matter of and thereupon the defendant, Davis, obthis suit, following the numerous rulings tained this writ of error. which have been made in similar cases in this court, we can do nothing further than to dismiss this appeal for want of jurisdiction, which is done, and the appellants must pay the costs of the appeal.

There can be no doubt that a motion to quash is the proper remedy where an execution has been issued without authority of law, and that a writ of error, or an appeal, will lie to the action of the court or justice improperly denying or overruling such mo

GREEN and BRANNON, JJ., concurred. tion. Taney v. Woodmansee, 23 W. Va. SNYDER, P., absent.

LOWTHER V. DAVIS.

709. The first inquiry, then, is, did the justice err in refusing to quash the execution in this case? A verdict is not a judgment. This is not only true as a general proposi

(Supreme Court of Appeals of West Virginia. tion, but it is equally true in respect to

Sept. 16, 1889.)

EXECUTION-APPEAL FROM JUSTICE OF THE PEACE.

1. An execution, purporting to be issued upon the judgment of a justice, when there is in fact no such judgment, but simply the verdict of a jury, is void, and the justice should quash such execution upon notice and motion.

2. The refusal of a justice to grant an appeal from his action or judgment, in a proper case, is sufficient cause for the granting of such arpeal by the judge of the circuit court upon the petition of the party aggrieved stating such refusal of the justice.

(Syllabus by the Court.)

Error to circuit court, Doddridge county.
J. V. Blair, for plaintiff in error.
S. D.
Turner, for defendant in error.

proceedings before justices under our statute. Section 131, c. 50, Code, provides that "executions for the enforcement of the judgment of a justice in a civil action may be issued by the justice by whom such judgment was rendered, or his successor in of

thorize the execution, and unless there is such judgment the execution is void, and should be quashed on a proper motion by the defendant therein. 1 Freem. Ex'ns, § 73.

fice, at any time within three years from the entry of the judgment," etc. And section 135 declares that the execution "must describe the judgment on which it issued," etc. These provisions clearly show that no execution can be issued by the justice until there is a judgment rendered upon which it can be issued. See, also, sections 215-217, as to judgments of justices on the verdicts of juries. Code 1887, p. 475; 1 Freem. Ex'ns, (2d Ed.) § 17. It is clear that no execution can be issued on the verdict of a SNYDER, P. In March, 1886, A. J. Lowther jury, but that there must be a judgment brought an action before a justice of Dodd-entered on the verdict by the justice to auridge county against W. H. H. Davis for $184 due by account. The summons having been duly served upon the defendant, both parties appeared, and on April 8, 1886, the case was tried by a jury, and the fol- But it is insisted by the defendant in erlowing verdict returned: "We, the jury, ror that the circuit court rightly dismissed find a verdict against W. H. H. Davis in the appeal in this case because the petition favor of A. J. Lowther for $184, with in- for the appeal did not show "good cause" terest from Nov. 1, 1882, till April 8, 1886, for the failure to take the appeal within 10 and costs." No entry of any judgment days, as prescribed by section 174, c. 50, of upon this verdict was ever made by the the Code. It is settled by the decisions of justice; but the defendant took an appeal this court that unless such "good cause" to the circuit court, which was in Decem- appears in the petition for the appeal, then ber, 1887, dismissed. Afterwards, on the or- the appeal must be dismissed as having der of the plaintiff, the justice issued an ex-been improvidently awarded. Hubbard v. ecution for $184, purporting to be upon a Yocum, 30 W. Va. 740, 5 S. E. Rep. 867; judgment rendered on April 8, 1886, in favor Home, etc., Co. v. Floding, 27 W. Va. 543. of A. J. Lowther against W. H. H. Davis, The petition for the appeal in this case and placed the same in the hands of a con- stated that the petitioner had within 10 stable for collection. The said Davis days after the date of the judgment overcaused a written notice to be served upon ruling the motion to quash the execution Lowther, wherein he notified Lowther tendered an appeal-bond, and asked the that he would on January 24, 1888, move justice to allow him an appeal, and that the said justice to quash said execution. the justice refused to do so. While this re

peach their verdict.

fusal of the justice was arbitrary, and un- 6. It is not error to exclude evidence which authorized by law, yet it was "good cause would not have benefited the party offering it. for the failure, so far as the petitioner was such evidence tends to prove an item which may 7. Where evidence is improperly rejected, and concerned, to get an appeal. The petior may not have been taken into account by the tioner had done all in his power to obtain jury in fixing the amount in their verdict, and it the appeal, and therefore he is chargeable is manifest and plain that outside of such item, with no want of diligence. It is, however, under the evidence, there was ground for finding insisted that the petitioner could have com- a verdict for at least the amount found by the jury, pelled the justice, by mandamus, to allow and a new trial is refused by the court below, this the appeal, and that he should have done court will not for that cause reverse the judgment. so. Mandamus is an extraordinary writ, controversy now dead, and against his pecuniary 8. A declaration made by a stranger to the and lies only in cases where the party has interest, may be admitted as evidence to show the no other specific or adequate remedy. 2 existence of a fact relevant in such controversy as Cooley, Bl. Comm. bk. 3, p. 110, note 13; 4 an exception to the rule excluding hearsay. Minor, Inst. pt. 1, p. 362; Justices v. Mun- 9. Reaffirming point 1 in Probst v. Braeunlich, day, 2 Leigh, 169. It would not lie in a case 24 W. Va. 356, it is settled in this state, as a gensuch as the one before us, because the stat-eral rule, with but few, if any, exceptions, that ute gives a plain and adequate remedy by the testimony of jurors will not be received to impetition to the court. This remedy did not exist in Virginia when the case of Ex parte Morris, 11 Grat. 292, was decided, and therefore that case has no application since the enactment of our statute authorizing the circuit court, or the judge thereof, to grant appeals. The statute was passed to meet just such cases as the one now under consideration. My conclusion is that the circuit court erred in dismissing the appeal, and that the justice erred in overruling the motion of the defendant, Davis, to quash the execution, for the reason that there was no judgment on which it could have been legally issued. The action and judgment of the circuit court is therefore reversed, and this cause is remanded to that court for the trial of said appeal according to law.

GREEN, ENGLISH, and BRANNON, JJ., concurred.

BARTLETT v. PATTON.

(Syllabus by the Court.)

John

Error to circuit court, Harrison county.
J. J. Davis, for plaintiff in error.
Bassel, for defendant in error.

BRANNON, J. Jedediah W. Bartlett, administrator c. t. a. of John Ryan, brought assumpsit in the circuit court of Harrison county against John Patton, executor of Sarah Ryan, to recover the value of certain personal property which John Ryan had bequeathed for life to his widow, Sarah Ryan, and which had been in part sold and converted by her to her own use and in part sold by her executor as part of her estate. The case was tried by a jury on the issue raised by the general issue, a verdict rendered in favor of plaintiff for $477.50, and the court, overruling a motion for a new trial, entered judgment on the verdict; and John Patton, executor, sued out the writ of error now in hand Other rulings upon the trial will appear in this opinion. The main point of controversy in this case is whether, under

(Supreme Court of Appeals of West Virginia. the will of John Ryan, Sarah Ryan took

Sept. 14, 1889.)

WILLS-LIFE-ESTATE IN CHATTELS-EVIDENCE.

1. Where chattels are given by will to a person for his life, without any limitation over in remainder, the legatee for life has not absolute property in such chattels, but his estate is accountable to the estate of the testator for such chattels as the legatee, in his life-time, sold and converted to his use, or his administrator, after his death, sold and converted to the use of such legatee's estate; but such is not the case with such chattels as are consumed in their use (quæ in usu consumuntur) in which the legatee for life has an absolute property.

2. In order to vest in such legatee an absolute property in such chattels as are consumed in their use, they must be given as a specific, not as a general, legacy, and not as a part of the residuum. 3. There may be a legacy given by implication, but to raise such implication it must be necessary to do so in order to carry out a manifest and plain intent of the testator which would fail unless such implication be allowed. Points 6, 7, 8, 12, 13, and 14 of the syllabus in Graham v Graham, 23 W. Va.

46, reaffirmed.

4. A document not purporting to be a copy or abstract from the assessor's personal property list, but merely a certificate of a clerk of a county court of the assessment or non-assessment of a person or his property in such book, is not admissible in evidence.

5. In a suit by the personal representative of the testator to recover for chattels converted as above supposed, such personal property book itself would not be admissible to show the value of the personal estate of the testator or the legatee for life.

an absolute or only a life estate in the personalty therein bequeathed. Plaintiff, contending that she took only a life-estate, after her death sued her estate to recover the value of the personalty which she in her life-time, or her executor after her death, sold; and the defendant contends that her estate is not liable, because she took under said will an absolute estate. The will says: "Second. I bequeath to my loving wife all my land or farm which I now live on, and all my personal property and money and bonds and household and cichin furniture and farming utensils, as long as she livs. I desire at the death of my wife, Sarah, that my farm which I now live on shal be sold, and one-half the money be devided equally between the heirs of my daughter Olive Bartlett, deceased, and the other to be divided equally between the heirs of my daughter Hannah Bartlett, deceased. I leave my wife my executor to live out my bequeath.” could be no limitation over of a chattel, but Originally we know that by our law there that a gift carried the absolute interest. Then a distinction was taken between the use and the property. The use might be given to one for life, and the property afterwards to another. In Randall v. Russell, 3 Mer. 195, Sir WILLIAM GRANT, after adverting to the former rule, says: "A gift for life of a chattel is now construed to be a gift of the usufruct only; but when the use and the

property can have no separate existence it | life is, in most cases, of necessity, a gift of should seem that the old rule must still the absolute property, for the use and the prevail, and that a limitation over after a property cannot exist separately. If not life-interest must be held to be ineffectual." specifically given, but generally, as goods He conceived that a gift for life of things and chattels, with remainder over, the tenquæ ipso usu consumuntur was a gift of the ant for life is bound to convert them into property, and that there could not be a money and save the principal for the remainlimitation over after a life-interest in such der-man." So, also, says Lomax, supra. articles. 2 Rob. Pr. (Old) 97; 2 Bl. Comm. In Madden v. Madden, 2 Leigh, 389, Judge 398; 2 Lomax, Ex'rs, 69. Now, there is no GREEN leaned strongly against the legatee question but a life-estate to one with re- for life having any absolute property even mainder to another in personalty may be in specific bequests of such consumable argiven, as recognized in an infinite number ticles. Now, in the will in this case there of cases. Houser v. Ruffner, 18 W. Va. 253, is no specific bequest of such articles. Its and cases cited; Frazer v. Bevill, 11 Grat. 9; language is, "all my personal property and Chisholm v. Starke, 3 Call. 25, and cases be- money and bonds and household and kitchlow. In Madden v. Madden, 2 Leigh, 377, it en furniture and farming utensils." If the was held that under the will the wife took testator bequeathed any goods of a nature an estate for life in such of the moveables as to be consumed in the use they must fall unwere capable of being used and returned in der the words "all my personal property," kind, and a quære was left whether the wife which is a general, not a specific, bequest, or her estate was accountable to the lega- as if he had said, "my wheat, rye, bacon, tees in remainder for such of the movables as flour," and the other words do not import were consumable in their use, such as grain property of that nature. Money and bonds or money or debts. In Dunbar v. Wood- are there named, but they are not of that cock, 10 Leigh, 628, a will gave the resid- nature, but are capable of being given for uum of the estate, real and personal, to tes- life, with remainder over. Says Kent: tator's wife for life, and after her death gave "This limitation over in remainder is good the same, as well the land as all other prop-as to every species of chattels of a durable erty remaining at her decease, to D.and wife, nature, and there is no difference in that rethe residuum consisting of farm, slaves, live-spect between money and any other chatstock thereon, furniture, farming utensils, tel interest." Therefore, unless this will crops of grain on hand, money, and debts gave Sarah Ryan an absolute property in due; and the wife took and held in kind all the personal property, it gave it to her during her life the slaves, live-stock, furni- in no part of it, and I am of opinion that ture, and farming utensils, and she appro-in all of it she had only a life-estate. The priated the whole of the crops on hand to language, "I give to my loving wife all my her own use. It was held that the will gave land or farm which I now live on, and all the legatee for life no absolute power of dis- my personal property and money and bonds posal of any of the property, and as to it and household and kitchen furniture, as all the limitation in remainder was valid; long as she lives," is plain, and both in that as to grain on hand the legatee for life grammatical structure and common sense was entitled to so much as was necessary gives her a life-estate in both land and perfor consumption in her family for the year sonal property. Had it stopped there there following testator's death, but her estate could be no question of that. What is to was accountable to the remainder-men for change it? The suggestion in the petition the value of the surplus thereof; that as to for the appeal is made (for we have no arhorses, farming utensils, and the like, such gument or brief for appellant) that the balas were forthcoming at the life-tenant's ance of the will gives a remainder over in death were to be returned in kind in their the real estate after the termination of the then state, though worn; such as died or life-estate, but does not as to the personalwere worn out were not to be charged to ty, and giving no remainder as to it would her; that her estate was to be charged with make the testator die intestate as to it if the principal of what she had sold, unless Mrs. Ryan took only a life-estate, which is other articles of same kind were substi- against the presumption of law that, in the tuted; that brood-mares, flocks of sheep, absence of evidence to the contrary, when and the like, the life-tenant must keep up one makes a will he is taken to intend to in kind, and her estate was accountable for dispose of the whole estate. It has again them accordingly, unless destroyed or im- and again been said that the intention paired by casualty. But it is to be noted of the testator is the polar star to steer that that was to be under a bequest of the us in reaching the true construction of residuum, and as to chattels falling under a his will, and this intention is, if possible, to residuary bequest even those which are be reflected by its language. As was said consumed in the use are not vested as ab- by Judge TUCKER, in Miars v. Bedgood, 9 solute property in the legatee for life, and Leigh, 375, that intent will be "carried inhis estate must account for them; but they to effect whether the will be drafted with should be sold and the interest paid to the technical accuracy or not. The consequence legatee for life and the principal kept for the of these principles seems to be that in the remainder-man. 2 Kent, Comm.353; 2 Lo-construction of wills which carry evidence max, Ex'rs, 71; Schouler, Ex'rs, §342. But as upon their face that they have been the to those chattels consumed in the use, to give work of ignorant testators, and not of exthe legatee for life an absolute property in perienced and enlightened scriveners, [such even them, the gift of them must be specific, is the case with the will of Ryan,] adjudinot general. Kent says: "In the case of a be-cated cases can afford us little aid. As has quest of specific things, as, for instance, corn, hay, and fruits, of which the use consists in the consumption, the gift of such articles for

been truly said by the great luminary of this court,' adjudged cases upon wills have more frequently been produced to disappoint