Claymore v. Wallace

• Decision Date: 06 June 1961
• Docket Number: No. 12084,12084
• Citation: 146 W.Va. 379,120 S.E.2d 241
• Court: West Virginia Supreme Court
• Parties: June Wallace CLAYMORE v. Harry A. WALLACE, Jr., and the National Bank of Commerce, etc., as Joint Trustees of the Estate of Harry A. Wallace et al., etc.

Page 241

120 S.E.2d 241

146 W.Va. 379

June Wallace CLAYMORE v. Harry A. WALLACE, Jr., and the National Bank of Commerce etc., as Joint Trustees of the Estate of Harry A Wallace et al., etc.

No. 12084.

Supreme Court of Appeals of West Virginia.

Submitted April 19, 1961.

Decided June 6, 1961.

Syllabus by the Court.

1. The cardinal principle in construing a will is to ascertain the intent of the testator as expressed in the words of the will and codicils, giving consideration to all the surrounding circumstances.

2. An annuity may be payable out of the income or principal, or both, and may be created out of a legacy, but there can be no inheritance or succession in connection therewith.

3. A general legacy is one designated primarily by quantity or amount and may be satisfied out of the general assets of the testator without regard to any particular fund or thing. A specific legacy is a gift of a particular or specified fund or thing. A demonstrative legacy is in the nature of both the general and specific legacy. A specific legacy is not subject to abatement, unless needed for debts, although it is subject to ademption if not in existence, but a general legacy is subject to abatement if the estate is not sufficient to satisfy both types of legacies. A specific legacy carries with it the interest or increment, while a general or demonstrative legacy does not.

4. Liberal construction is to be given in favor of the existence of a trust and words which are not uncertain or ambiguous must be given their clear meaning and effect.

5. Where a trust fund is created for a particular beneficiary without specifically disposing of the increment in the codicil setting up the trust fund, a general clause in the will disposing of increments from the trusts created by distributing them to the beneficiaries thereof would carry the necessary implied intent to let the increment naturally follow the equitable ownership of the trust fund created in the codicil.

Philip Angel, Henry P. Butts, I. Murray Lewis, James M. Sprouse, Charleston, for appellants.

John A. Amick, J. Marshall Holcomb, Charleston, for appellee.

BERRY, Judge.

This case involves a declaratory judgment proceeding instituted in the Circuit Court of Kanawha County, West Virginia, by the petitioner, June Wallace Claymore, against Harry A. Wallace, Jr., and the National Bank of Commerce of Charleston, a National Banking Association, as Joint Trustees of the Estate of Harry A. Wallace, Harry A. Wallace, Jr., in his own right, Harry A. Wallace, III, Elizabeth Wallace Hartman, William Burdette Wallace, an infant, Frank Wallace, Mary Irene Wallace, an infant, Virginia Wallace Riggs, Robert Wallace, and all unborn children of the above parties excepting the Trustees, wherein she claims the increment resulting from the investment by the trustees of $30,000 provided for the petitioner and payable to her in monthly installments of $250 per month. The petitioner sought to have the Circuit Court of Kanawha County declare the rights of the beneficiary under the will and codicil of Harry A. Wallace, Sr. and particularly to construe and interpret the provisions of the will and codicil relating to the said $30,000 and to hold that the increment of said sum belonged to her. The respondents filed a demurrer and answer to the petition contending that the will and codicil disclose that the petitioner is entitled only to the sum of $30,000; that the petitioner had been paid the entire sum of $30,000 and that that was all to which she was entitled, the last monthly payment having been made to her in January, 1958.

The trial court overruled the respondents' demurrer and gave leave to them to amend their answer, which was done. The petitioner demurred to the amended answer after which the trial court sustained the demurrer and rendered the final decree on April 4, 1960, holding that the petitioner was entitled to be paid the sum of $250 per month, as provided in the will, until the principal sum of $30,000 and the increment or interest thereon was exhausted, and that a lump sum payment of the accrued monthly payments of $250 be made to the petitioner from the date of the last monthly payment made to her in January, 1958. Upon petition to this Court by the respondents, an appeal and supersedeas to the decree of the Circuit Court of April 4, 1960 was granted on November 21, 1960.

There are several errors assigned, but they all relate to the contention that the petitioner was entitled only to the sum of $30,000 under the provisions of the will and codicil and not the increment thereon.

The facts in this proceeding are not in dispute and the whole case revolves around the construction of the will and one codicil.

Harry A. Wallace, Sr. died September 29, 1947. The original will was executed on September 13, 1946. The first codicil was added April 11, 1947, and the second codicil was made on June 30, 1947. The first codicil merely provided for a trust fund to maintain the decedent's family home in Charleston, changed certain dates of payments to the beneficiaries and had nothing to do with the question involved in this case.

The reason for the complication in the case at bar is because of the fact that the second codicil, which must be construed in connection with the will for the determination of the case, is almost as lengthy and complex as the will itself and attempts the difficult task of making major changes in the original disposition planned without rewriting the will. The will contains many paragraphs which are not necessary to discuss in connection with the question involved. The third paragraph of the will bequeaths to the testator's son, Harry A. Wallace, Jr., one-fifth part of the balance of his entire estate, after the payment of his debts, funeral expenses and costs of administration, free and acquit of the trust thereinafter created. The fifth paragraph places the residue of his estate in trust and directs the distribution thereof, said trust being divided into four separate parts in which provisions are made for his children and grandchildren by paragraph seven of the will, and if any or all of the beneficiaries died before the testator, or died without issue before termination of their respective trusts, their shares would go to testator's son, Harry A. Wallace, Jr., or to his issue if he were dead. The ninth paragraph provides that in case of necessitous circumstances of beneficiaries, the trustees can increase the monthly amounts to be paid in each case. Paragraph ten provides for the termination of the trust when the youngest grandchild, living at the time of the testator's death, attains the age of twenty-five years, but provides that the trustees could terminate the trust, with the exception of one son Robert, after sixteen years following testator's death, in which case the remaining portions of the estate would be distributed to the beneficiaries then living. Paragraph twelve contains provisions for a spendthrift trust and a clause for the prevention of assignments by beneficiaries.

The first Section of Paragraph Six of the will relates to two-eighths of the trust set up under the will and deals directly with the petitioner and her mother, Mildred Wallace Riddle. Inasmuch as the disposition of this case must depend upon the construction of this particular provision coupled with the provisions in the second codicil which attempt to change the provisions thereof in certain instances relating thereto, it will be necessary to quote said Paragraph verbatim:

'Sixth: I direct that said trust estate shall be held in trust for the following uses, purposes and benefits:

'1. Of the foregoing trust, I direct the two-eighths (2/8) thereof, subject to the terms, conditions and provisions of this, my will, be devoted to, set aside and used for the benefit of my daughter, Mildred Wallace Riddle, and my granddaughter, June Wallace Riddle, in the following manner, i. e.:

'If she survive me, I direct that Three Hundred ($300.00) Dollars per month from said one-eighth part of my said trust estate be paid to my said daughter, Mildred Wallace Riddle, until her death or until the termination of this trust, whichever occurs first. If, prior to my demise or the termination of this trust as to my said daughter, Mildred Wallace Riddle, my said daughter Mildred shall die, then the one-eighth part of said trust estate allocated to her, or the remainder thereof, shall be utilized for the benefit of my granddaughter, June Wallace Riddle; provided, however, that she shall not receive more per month than $250.00. If my said granddaughter, June Wallace Riddle, survives me, from said one-eighth of my said trust estate allocated to her I direct that she be paid the sum of Two Hundred Fifty ($250.00) Dollars per month until her death or until the termination of said trust as to her, whichever shall occur first. If she die prior to my demise or before the termination of said trust as to her, without issue, and her said mother, Mildred Wallace Riddle, survive, then I direct that the remaining part of said one-eighth part of said trust estate be utilized for the benefit of my said daughter, Mildred Wallace Riddle, in the manner as hereinabove provided; provided, however, that she shall not receive more per month than that above provided. If, however, the said June Wallace Riddle die, leaving issue, then in such event such issue shall take such part of my said trust estate as the said June Wallace Riddle would have taken had she survived, payable in like monthly sums. If both my said daughter, Mildred Wallace Riddle, and my granddaughter, June Wallace Riddle, predecease me, or die before the full distribution of said two-eighths of my trust estate to them, separately and/or jointly, and the said June Wallace Riddle so die without issue, as above provided, then in that event such part of such trust estate, or the remainder thereof, shall be participated in by each of my then living...