Behrens v. Baumann

• Decision Date: 26 October 1909
• Citation: 66 W.Va. 56,66 S.E. 5
• Parties: BEHRENS et al. v. BAUMANN et al.
• Court: West Virginia Supreme Court

(66 W.Va. 56)

66 S.E. 5

BEHRENS et al.

v.BAUMANN et al.

Supreme Court of Appeals of West Virginia.

Oct. 26, 1909.

1. Wills (§ 439^*)—Construction—Intent.

In the interpretation of a will the dominant or primary intention, gathered from the whole thereof and all its provisions, must be allowed to control, when all the clauses can be harmonized with it.

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 952, 955, 957; Dec. Dig. § 439.*]

2. Wills (§ 443*) — Construction—Intent-General and Special.

Though a clause or provision in a will clearly expressing a particular or special intent will prevail over such general intent, doubtful expressions, merely susceptible of a meaning inconsistent therewith, will not do so.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 960; Dec. Dig. § 443.*]

3. Wills (§ 614*) — Estates Created — Life Estate or Fee Simple. «

A life estate in all of the testator's property, real and personal, given to his wife, who is charged with the administration of the estate for the benefit of herself and the other beneficiaries named in the will, is not enlarged into a fee-simple estate in either the real or personal property by the following phrase, describing the property to go over: "Whatsoever what may be left."

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1393-1416; Dec. Dig. § 614.*]

4. Wills (§ 602*) — Estates Created — Defeasible or Absolute Fee Simple—"Then the Estate Left Over."

Nor in such case is a fee-simple estate in remainder, defeasible by the death of the devisee without leaving a child or children surviving him, enlarged into an absolute estate in fee simple by the insertion after the naming of the event, the happening of which shall divest the estate, of the phrase, "then the estate left over."

[Ed. Note.—For other cases, see Wills, Cent. Dig. §§ 1351-1359; Dec. Dig. § 602.*]

5. Wills (§ 443*) — Construction — Indefinite Expressions.

Such indefinite expressions cannot be allowed the widest signification of which they are capable, if, when so read, they conflict with the general intent expressed.

[Ed. Note.—For other cases, see Wills, Cent Dig. § 900; Dec. Dig. § 443.*]

6. Wills (§ 460*)—Construction—Transposition.

In no case when the words of a will are plain and unequivocal is a transposition to bemade that will create a meaning different from that which they naturally had as written.

[Ed. Note.—For other cases, see Wills, Cent. Dig. § 979; Dec. Dig. § 460.^2-*]

7. Remainders (§ 12*)—Personal Property.

Personal property, as well as real estate, is a subject of executory interests and limitations.

[Ed. Note.—For other cases, see Remainders, Cent. Dig. § 3; Dec. Dig. § 12.*]

(Syllabus by the Court.)

Appeal from Circuit Court, Ohio County.

Suit by Ricka Behrens and others against William N. Baumann, administrator with the will annexed, of Frederick Hanke, deceased, and others. Decree for plaintiffs, and defendants appeal. Affirmed.

Jno. J. Coniff and Geo. J. Rogers, for appellants.

C. E. Morris and Erskine & Allison, for appellees.

POFFENBARGER, J. The interpretation of the will of Frederick Hanke is the only matter involved in this cause, and the question is whether Raymond Hanke, grandson of the testator, took an absolute, or a defeasible, fee-simple estate in remainder. By the second clause of the will Hanke gave to his wife all of his estate, real and personal, "for her own use during her natural life." By the third clause he requested her "to administer all the estate for the benefit of herself and the heirs" in the will afterwards mentioned. By the fourth clause he provided that his grandson, Raymond Hanke, should "have everything, real or personal whatsoever what may be left"; and then as follows: If the said Raymond Hanke "should pass away, without leaving any child or children of his own, than (then) the estate left over shall be divided in equal shares between the first cousins of my widow Mrs. Freder-icka Theresa Hanke said cousins residing in Europe and Ricka Behrens, Frederick To-faute, Lizzie Goehmann, Hannah Kasten, & Lina Schneider residing in this country." The wife died before the testator, and the life estate therefore lapsed. The testator died in 1901. Raymond Hanke, the grandson, died on May 30, 1906, at the age of 20 years, without issue. Assuming absolute title in himself, and capacity to dispose of the property, he made a will, purporting to give all the estate he had, other than that left him by his mother, to Sophia Hanke, AVilliam W. Schambra, and William N. Baumann. Thus he attempted to dispose of the Frederick Hanke estate. The executrix named in the will of Frederick Hanke, his wife, having died before the will was probated, William N. Baumann was appointed administrator with the will annexed, and the estate passed into his hands as such. He was also the guardian of Raymond Hanke, and transferred it to himself as such. This suit was brought by the beneficiaries named in the fourth clause of Hanke's will, except the cousins residing in Europe who are unknown, and the court, being of the opinion that Raymond Hanke took a defeasible estate in fee simple, decreed title to the whole estate in the plaintiffs and the said European cousins, if any there are, and the right of possession of the real estate. Pending the suit a receiver had been appointed, who had collected rents from the real estate, and the decree directed him to pay the same over to the plaintiffs, to be held by them as tenants in common for themselves and their co-tenants, if any there are. Being of the opinion that the personal estate should not be distributed until an inquiry shall have been made as to the existence and identity of the supposed European cousins, and the condition of the estate, the court referred the cause to a commissioner for a settlement of the accounts of Baumann, administrator, and an inquiry as to what estate Frederick Hanke died seised and possessed of, and all matters necessary to a full settlement and distribution of the same.

As the life estate given Fredericka Theresa Hanke lapsed by her death, antedating that of the testator, counsel for both appellants and appellees seem to be of the opinion that no inquiry as to what estate she would have taken, had she survived, is necessary. In this view they may be correct; but, anticipating the possible suggestion that she would have taken, not merely a life estate in the personal property, but absolute title to it, and, the will containing no residuary clause, the testator might be deemed to have died intestate, we have examined the provisions of the second, third, and fourth clauses, respecting the estate intended for her, and concluded that it was a life estate only. No power of disposition or consumption is expressly given to her. In express terms her estate is defined as one for life, and she is required to administer the whole estate for the benefit of herself, Raymond Hanke, the grandson, and the other beneficiaries mentioned in the fourth clause, taking in the event of the death of the grandson without issue. We therefore construe the words "whatsoever what may be left, " not as giving to her by Implication a right of consumption and disposition, but as merely indicating intention to give what should remain after the payment of debts and funeral expenses and the consumption of such portion of the estate as a life tenant could rightfully consume. That such a tenant is not required to account for such things as are consumable in the use thereof is well settled. Bart-lett v. Patton, 33 W. Va. 71, 10 S. E. 21, 5 L. R. A. 523. The dominant intent ascertained from an examination of the entire will and consideration of all of its provisions must prevail. Morgan v. Morgan, 60 W. Va. 327, 55 S. E. 389. As to what that Intention was there can be no doubt. The wife was to take in the first instance, then the grandson, and, in lieu of him, if he died without living children, the other persons named in the fourth clause, unless in some other way, or by some other provision, a different intention is manifested. The intention shown by the words "whatsoever what may be left" must be subordinated to the general or dominant intent, but they cannot be wholly ignored. Some function must be assigned to them. That has been done by making them define or describe the property intended to go to the remaindermen, and therefore it does not necessarily imply a right of disposition in the life tenant. We are not to be understood as saying a right of consumption...