In re Estate
In re Estate
Opinion of the Court
Appellant, residuary legatee under the will of O. M. Hess, was granted a writ of error by the Circuit Court of Tyler County to an order of the County Court of that county confirming the report of a commissioner of accounts in allowing a claim in behalf of Rose Hess in the amount of $6,000.00 against the estate of O. M. Hess. Thereafter, on March 20, 1961, the circuit court, on motion of the appellee, dismissed the writ of error as improvidently awarded on the ground that the record had been improperly authenticated by the clerk of the county court, to which judgment this Court granted a writ of error on November 13, 1961. Thus, the sole question presented is the sufficiency of such authentication.
The certificate of the clerk is as follows:
“I, Ray F. Henderson, Clerk of the County Court of Tyler County, West Virginia, do certify, that the attached papers constitute all of the papers and matters pertaining to the appointment, qualification and proceedings of Cliff Wilson as the Executor of the Estate of O. M. Hess, as well also all papers and matters pertaining to the claims and opposition thereto of Rose Hess, Lillie Maple as Agent for Rose Hess, and Edna Holdren as Committee for Rose Hess an incompetent, as the same appears of record in my office.
“The papers and matters are as follows:
Then follows a list of 25 described papers. In addition to the above certificate each paper was individually certified as being a true copy of the instrument as it appears of record in the clerk’s office.
It is admitted in appellant’s petition that 6 of the items so certified are true copies while the remainder are the original instruments.
In Ballouz v. Hart, 96 W. Va. 580, 123 S. E. 402, decided in 1924 under the previous statute which provided that: “With such petition there shall be a transcript of the record and proceedings in the county court. . . .”, the fourth syllabus point states: “A writ of error (or appeal) awarded upon petition, not accompanied by a proper transcript of the record in the county court should be dismissed on motion of defendant in error.” In the opinion the Court said, quoting from Sterringer v. Mackie & Co., 57 W. Va. 63, 49 S. E. 942: “A transcript, according to its derivation and as generally used and understood, is in effect a copy.”, and queried, “What have we for ‘a transcript of the record and proceedings’ in the county court in this record?” The Court then identified the papers before it and quoted the certificate of the clerk that the “foregoing papers ... is a true and correct copy of the order entered by the county court, Hart Bros. vs. A. C. Ballouz, as the same appears upon the records in my said office. . . .”, concluding, “There is nothing in the certificate to show that these papers mentioned make a complete copy of the record, and proceedings. ... We are
In the later case of In Re Estate of Edwin A. Durham, 119 W. Va. 1, 191 S. E. 847, this Court held: “Upon writ of error from a circuit court to a judgment of a county court provided for by Code, 44-2-19 and Code, 58-3-1 according to the method prescribed in Code 58-3-4, the record must be authenticated by the certificate of the clerk of the county court showing that such record includes all of the matter wpon which the county court acted in deciding the questions presented for review, or that it includes all of the papers in the case that were before the county court. Otherwise it is not error in such a proceeding to dismiss a writ of error which has been awarded by the circuit court on the ground the record required by Code 58-3-4 did not accompany the petition for a writ of error as required by that section.” (Italics supplied.) In the opinion the Court said: . . The question of determining what constitutes the record is a separate question from determining whether that record has been duly authenticated for the purposes of review. . . There is no certificate of the clerk of the County Court of Tyler County as to what does in fact constitute the whole record in the case, nor as to what does or does not constitute all of the record thought sufficient for the purposes of this review. . . .” and went on to say “. . . there must be no uncertainty as to what constitutes the record upon which the matters to be reviewed were heard in the county court. Under our procedure an appellate court, in its consideration of reviewable questions, is confined strictly to the record made in the lower court. It must consider every part of it and no more. In order to accomplish the purposes of a review the appellate court must have before it the identical questions based upon the identical pleadings and proof that were before the lower court. ... It cannot be left to conjecture. It must appear affirmatively in a way that eliminates the chance that the record upon review will reflect a case different from that upon which the trial court reached its decision.”
This Court, after referring to the Durham and Ballouz cases, in In Re: Murphy’s Estate, 140 W. Va. 539, 85 S. E. 2d 836, stated: “These authorities seem to make it clear that notwithstanding no formal bill of exceptions, or certificate in lieu thereof, is required in such cases, the record before the county court upon which the order was based must be authenticated or identified in some manner so as to make it reasonably certain that the record before the circuit court was the same record which was before the county court.
In the instant case the certificate of the clerk is to the effect that “the attached papers constitute all of the papers and matters pertaining to the appointment, qualification and proceedings of Cliff Wilson as the Executor of the Estate of O. M. Hess”, which may or may not be germane to the issue asserted by appellant, “as well also all papers and matters pertaining to the claims and opposition thereto of Rose Hess ... as the same appears of record in my office.” The certificate thus purports to certify only so much of the papers and matters as appear “of record in my office”. This, in no way, could be held to be a certification of “all papers filed in the
The judgment of the Circuit Court of Taylor County, entered March 20, 1961, dismissing the “appeal” as improvidently awarded, is affirmed.
Affirmed.
Reference
- Full Case Name
- In Re: O. M. Hess Estate
- Status
- Published