Ball v. Ball, 10434

• Decision Date: 12 February 1952
• Docket Number: No. 10434,10434
• Citation: 69 S.E.2d 55,136 W.Va. 852
• Parties: BALL et al. v. BALL et al.
• Court: West Virginia Supreme Court

Page 55

69 S.E.2d 55

136 W.Va. 852

BALL et al. v. BALL et al.

No. 10434.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1952.

Decided Feb. 12, 1952.

Syllabus by the Court.

1. The primary and all-embracing rule governing the construction of a will is that testator's intent is the controlling factor, and if that intent is expressed so that it can be ascertained from the provisions of the will itself, and is not contrary to some positive rule of law, testator's intent, as expressed in the will, will prevail. As a corollary to this rule, the inquiry always is not what the testator intended to express, but what the wording of the will actually does express.

2. In the construction of a will, a court should construe and consider all of the provisions of the will as a whole, in their relation to each other, and in the light of the circumstances which prompted testator to execute the will.

3. A will duly probated, in which the testator appoints a named trustee and executor 'as my Trustee and Executor, which shall take charge of my estate and dispose of it in the following manner', which directs that 'My executor' shall from time to time sell items of testator's property 'as is thought most expedient', hold such items of property as have the best earning capacity, and pay testator's debts, funeral expenses, and erect a monument at testator's grave, which will provides that testator's 'executor' shall collect rentals from testator's property and keep the same in repair; that 'they' (the named trustee and executor) are authorized to borrow money to pay taxes, interest, and sinking fund on debts as may be required; and which will further provides for the payment of annuities on a monthly basis to named beneficiaries in a designated total amount; and that 'My Trustee shall do other things to carry out the intention of this Will, as may be deemed expedient at the time', and contains a purported residuary clause that testator's 'estate' shall be closed when all of the named beneficiaries are dead, and 'If any funds remain in the hands of my executor at that time, it shall be disbursed equally among my nearest of kin,' creates a testamentary trust and disposes of testator's entire estate, both as to real and personal property.

4. A will, creating a testamentary trust, vesting the legal title to testator's real and personal property in a named trustee, and providing that after the death of all of the named beneficiaries, testator's estate shall be disbursed among his 'nearest of kin', provides for a class which will be constituted of those persons who, at the expiration of the life estates, are testator's next of kin.

5. Where a will provides for the creation of a class, whose members cannot be ascertained until the expiration of a life estate or life estates, the members of the class take by way of contingent remainder.

6. An annuity created by will to be paid by a named trustee from a testator's estate is a chose in action and as such is assignable.

7. Where a will, creating a testamentary trust, provides for contingent remainders in favor of the members of a class to be formed and ascertained at the expiration of a life estate or life estates, and the trustee is granted an appeal from a final decree construing testator's will, in which the named beneficiaries do not join, the trustee has a proper status in this Court, and the appeal should not be dismissed as improvidently awarded.

Crockett & Tutwiler, J. Strother Crockett, Welch, for appellant.

Floyd M. Sayre, Beckley, Grove D. Moler, Mullens, R. D. Bailey, Sr., Pineville, for appellees.

RILEY, President.

John Ball, Jr., and Ruth Ball Grayson, children and sole heirs at law of John Ball, Sr., deceased, brought this suit in equity in the Circuit Court of Wyoming County, West Virginia, against Andrew Ball and others (including all of decedent's next of kin), The McDowell County National Bank, a corporation, executor under the last will and testament of decedent, and The McDowell County National Bank, a corporation, trustee under decedent's last will and testament, praying that the trust purported to be established be declared void, as being indefinite, uncertain, and incapable of being executed by the court; and that by reason thereof testator's real estate and personal property passed by operation of law to the plaintiffs jointly.

The McDowell County National Bank, both as executor and trustee, filed an answer to plaintiffs' bill of complaint, averring that testator's will is clear and unambiguous, and that under its terms the testator's real estate was devised to the bank to be sold and the proceeds thereof expended in the manner set forth and provided in the will. To this answer the plaintiffs, John Ball, Jr., and Ruth Ball Grayson, filed a replication denying the allegations of the answer, and averring that Martha Ball and Clara Ball Rosenberger, purported beneficiaries of the trust under consideration, had by deeds conveyed their interests under the will to the plaintiff, John Ball, Jr., and had no interest in the controversy in this suit, to which replication The McDowell County National Bank, both as executor and trustee, by its answer and rejoinder denied the right of Martha Ball and Clara Ball Rosenberger, to transfer their respective interests to the plaintiff, John Ball, Jr.

The trial court entered the final decree complained of in plaintiffs' favor, which decree adjudicated that plaintiffs, John Ball, Jr., and Ruth Ball Grayson, inherited the estate of testator by reason of their being his children, heirs at law, and next of kin, subject, however, to any and all legal debts against the estate at the time of testator's death.

The McDowell County National Bank, as trustee under testator's will, prosecutes this appeal to the decree of the Circuit Court of Wyoming County, assigning as error the holdings of that court: (1) That John Ball, Jr., and Ruth Ball Grayson are testator's 'nearest of kin' within the meaning of the will, after the beneficiaries of the trust therein have departed this life; (2) that John Ball, Jr., and Ruth Ball Grayson were vested with the legal title to all of testator's real estate and personal property; (3) that Clara Ball Rosenberger and Martha Ball, or any beneficiary under the purported trust created under the will, could sell their rights under the purported trust for a monetary consideration; and (4) that the court erred in failing to decree that all of decedent's property real and personal passed in trust to appellant, The McDowell County National Bank, to be administered as provided in decedent's last will and testament.

The will reads as follows:

'I, John Ball, the undersigned, after revoking all former wills made by me, make this my Last Will, on this, the 5th day of August, 1941.

'I appoint the McDowell County National Bank of Welch, West Virginia, as my Trustee and Executor, which shall take charge of my estate and dispose of it in the following manner, at my death:

'My household goods and tools shall become the property of John Ball, Jr., and his wife.

'My executor shall sell items of my property from time to time, as is thought most expedient, and pay my debts, funeral expenses, erect a monument over me like that of my wife; they shall hold items of my property from time to time that has the best earning capacity; they may hire some party to collect my rentals and keep my property in repair to the best advantage; they are authorized to borrow to pay taxes, interest, and sinking fund on debts, as may be required. After two months and a fraction of a month, on the last day of each succeeding month they are to pay John Ball, Jr., Forty Dollars ($40.00) per month; to his wife Mae Ball, Thirty Dollars ($30.00) per month, as long as she remains his wife or widow; to my daughter, Ruth Ball, Thirty Dollars ($30.00) per month; to my Sister Martha Ball Thirty Dollars ($30.00) per month; to my sister Clara Ball, Fifteen Dollars ($15.00) per month. In the event of the death of any of the above named parties, their share of the above allowances shall be divided among the others that are living, so as to keep the payments up to the amount of $145.00 per month. It is my desire that items of my property, not required to meet the above payments, and which have earning capacity, shall be carried in my name on the land books for taxation until such time as their value may be required to meet the above payments. My Trustee shall do other things to carry out the intention of this Will, as may be deemed expedient at the time; they shall make their settlements with the proper authorities and receive their pay for services according to the law regulating matters of that kind.

'If any beneficiary of this Will make claim against my estate for services rendered, rentals collected, or any other cause whatsoever, they shall bar themselves from collecting the above allowance of Thirty ($30.00) and Forty ($40.00) Dollars per month to the extent of the claim made and proved by them.

'Any deed that I have made, or may make, shall be valid and have priority over this Will, provided it is recorded within three months from the probation of this Will.

'The end of closing up of my estate shall be at a time when all the beneficiaries named above are dead; or at a time when the funds arising from the sale of my property have been exhausted. If any funds remain in the hands of my executor at that time, it shall be disbursed equally among my nearest of kin.'

The decedent, John Ball, Sr., died on August 31, 1949, at Pineville in Wyoming County. His will having been admitted to probate by the County Court of Wyoming County, the appellant, The McDowell County National Bank, qualified as executor and trustee, and gave bond as such executor and trustee, and is now acting in such capacities.

From the pleadings it appears that Mae Ball, the wife of John Ball, Jr., died prior to testator's death, and that John Ball, Jr.,...