Brookover v. Grimm

• Decision Date: 09 February 1937
• Docket Number: (No. 8430)
• Citation: 118 W.Va. 227
• Parties: W. S. Brookover v. Lottie B. Grimm et al
• Court: West Virginia Supreme Court

118 W.Va. 227

W. S. Brookover

v.Lottie B. Grimm et al

(No. 8430)

Supreme Court of Appeals of West Virginia.

Submitted January 26, 1937.

Decided February 9, 1937.

1. Wills

Technical words used in a will should ordinarily be given their technical meaning, but the rule is not absolute. Where it appears from the context that another meaning was intended, the courts will not apply the technical import.

2.Wills

A direction in a will that specific real estate shall "descend" to indicated persons may properly be interpreted to mean that the property shall pass by devise to such persons.

3.Wills

In the construction of wills, the testamentary intent, as indicated by the words used, is generally controlling and should be given effect "unless to do so would violate some positive rule of law or public policy." McCreery v. Johnston, 90 W. Va. 80, 110 S. E. 464.

4.Perpetuities

The rule against perpetuities is not a rule of construction but is an arbitrary, absolute and fundamental canon to prevent indefinite control by a grantor or testator over the devolution of property.

5.Perpetuities

The rule against perpetuities requires that "every executory limitation, in order to be valid, shall be so limited that it must necessarily vest, if at all, within a life or lives in being, ten months and twenty-one years thereafter, the period of gestation being allowed only in those cases in which it is a factor." i Minor on Real Property (2d Ed.), section 809.

6.Perpetuities

An estate for life in a person not in being at the testator's death cannot be interposed between the estate of the first taker and the vesting of an executory limitation.

7.Perpetuities

If a stated contingency involves a contemplated life tenant who, by any possibility, may not have come into being at the time the deed or will becomes effective, a limitation of vesting sought to be based on such contingency is void. Under a devise to Paul Brookover with a provision that if he "shall die without issue living and leave a widow,.then said widow to have a life time interest in said real estate and at her death, it is my will * * * that the real estate so devised to the said Paul Brookover shall descend equally" to indicated remaindermen, the proposed life tenant may not be in being at the death of the testator, consequently, the attempted limitation was void, and the first taker became vested with feesimple title.

8.Perpetuities

Where an estate is limited on two alternative contingencies, one of which violates the rule against perpetuities, and the other does not, the former may be disregarded and the latter given effect.

9.Wills

Under an unlimited bequest of personal property with condition that if the recipient should die unmarried "then it is my will that the balance of his said interest shall be divided equally" among indicated remaindermen, there was created an absolute estate in the first taker. At his death intestate his interest under the bequest passed to his estate and not to the remaindermen.

Appeal from Circuit Court, Wetzel County.

Suit by W. S. Brookover against Lottie B. Grimm and others. From the decree rendered, plaintiff appeals and defendants cross-assign error.

Affirmed in part; reversed in part; remanded.

Kenna, Judge, dissenting.

James E. Law and George W. Bland, for appellant. M. H. Willis, for appellees.

Maxwell, Judge:

The primary purpose of this suit is for construction of Items IV, V, VI and VII of the last will of Samuel L. Morgan, deceased. When the case was here on first ap- peal, we held that the trial court had erred in sustaining a demurrer to the bill and dismissing the same out of court, it appearing that certain paragraphs of the will are ambiguous, and that, under Code 1931, 41-3-7, the plaintiff was entitled to a judicial interpretation thereof. We reinstated the cause and remanded it to the trial court for construction of the testamentary paragraphs involved. Brookover v. Grimm, 114 W. Va. 701, 174 S. E. 567. We were of opinion that "ambiguity", within the meaning of said statute, is a testamentary provision capable of being understood in either of two or more possible senses, and is inclusive both of provisions which may be construed from the context alone, and of those requiring parol evidence for elucidation. We considered this matter in the former, not the latter, sense.

The plaintiff, W. S. Brookover, was the father of Paul Brookover, now deceased, who was a devisee and legatee under the Samuel L. Morgan will. When the testator died, July 12, 1923, Paul was of the age thirteen. In November, 1923, W. S. Brookover was appointed Paul's guardian. The plaintiff sues as such guardian and in his individual capacity. The matter of settlement of the accounts of the guardian is the secondary matter involved. Paul Brookover died February 24, 1928, age eighteen, intestate, unmarried and without issue, leaving his father surviving him as his sole heir at law.

It is the position of the plaintiff that the several devises to Paul Brookover, under Items IV, V and VI of the Samuel L. Morgan will, were in fee simple absolute, and that upon Paul's death, the title to the land so devised to Paul passed by descent to his father as sole heir; and that under the bequest of personal property in Item VII of the will, Paul's interest was likewise unqualified, and on his death passed under the distribution statute to his father. These contentions are opposed by the defendants. They say that the several devises and the bequest to Paul were all based on the contingencies set forth in the said several items, respectively, and that on his death, the property which had been conditionally de- vised and bequeathed to him, passed under the will, to the remaindermen designated therein. The court resolved these contentions against the plaintiff and he appealed. Favorable to the plaintiff, however, the court held that subsequent to the death of Samuel L. Morgan, his devisee and legatee, Paul Brookover, was entitled to the rents and profits of the property which had been given to him under the will, and that as to such emoluments the plaintiff, as guardian of Paul, was not required to make an accounting to the defendants. To this holding, adverse to them, the defendants cross-assign error.

Samuel L. Morgan was survived by two daughters, Lottie Grimm and Minnie Yoho, by Paul Brookover, his great-grandson, being the grandson of the testator's deceased daughter, Frances Morgan Martin, and by his grandchildren, sons and daughters of his deceased son, Richard T. Morgan.

By the first Item of his will, the testator provided for the payment of his debts, by the second, he devised certain real estate to his daughter, Minnie Yoho, and the third embraced a devise jointly to his daughter, Lottie B. Grimm, and the heirs of Richard T. Morgan, deceased.

Item IV of the will reads as follows:

"I give unto Paul Brookover, infant, great-grandson, grand-son of Frances Martin, deceased, wife of Ben Martin, of Minnie, West Virginia, the following real estate: Thirty-three and 1-3 (33 1-3) acres, more or less, on the head waters of Turkey Run, purchased from John Chaplin; Seventy-seven (77) acres, more or less, on the south side of Big Fishing Creek and one hundred and Thirty-four (134) acres, more or less, the last two of said tracts purchased from Adam Kuhn. It is my will that the said Ben Martin shall have a life time interest in the real estate devised to the said Paul Brookover.

"If the said Paul Brookover shall die without issue living and leave a widow, then said widow to have a life time interest in said real estate and at her death, it is my will, after the death of the said Ben Martin, that the real estate so devised to the said Paul Brookover shall descend equally to the said Lottie Grimm or her heirs; Minnie Yoho, or her heirs, and the heirs of Richard T. Morgan, deceased.

"I reserve all my rights to the coal, oil and gas within and under said tracts of land."

Ben Martin, (grandfather of Paul) life tenant under the said item, died in March, 1925. That life tenancy, therefore, is not involved in the juristical problem now presented. The dominant inquiry centers in the language "If the said Paul Brookover shall die without issue living and leave a widow., then said widow to have a life time interest in said real estate and at her death, it is my will, * * * that the real estate so devised to the said Paul Brookover shall descend equally" to the parties named. Technical meaning should not be ascribed to the word "descend" as herein used by the testator. Obviously, it is employed in the sense of "devise" or "pass by devise". It is true that technical words employed in a will should ordinarily be given their strict meaning, but the rule is not absolute. Where it appears from the context that another meaning was intended, the courts will not apply the technical import. 1 Page on Wills (2d Ed.), section 822; 28 Ruling Case Law, p. 219. If the provisions in respect of the remainder were that it should descend to the devisee's heirs as in Trahern v. Woolwine, 109 W. Va. 623, 155 S. E. 909, there would be a strong presumption that the testator employed the word "descend" in its technical meaning, because it is logical that real estate should descend to heirs; but here, the testator provided that the property should "descend" to indicated persons, not heirs of Paul Brookover. This is wholly illogical. He meant, of course, that the property should pass to those persons upon the contingency stated. Evidently, he was not thinking of descent under the statute, but of a passage of the title of the property by devise, as he therein specified.

So, in respect of the limitation under Item IV of the will, leaving out of consideration the Ben Martin life estate, it was the testator's expressed intention that if Paul Brookover, to whom three parcels of real estate were devised by said article, should die without living issue and leave a widow, the widow should have a life interest in the said...