Couch v. Eastham

• Decision Date: 25 June 1887
• Citation: 29 W.Va. 784
• Parties: Couch v. Eastham et alandEastham v. Couch et al.
• Court: West Virginia Supreme Court

29 W.Va. 784

Couch

v.Eastham et alandEastham

v.Couch et al.

Supreme Court of Appeals of West Virginia.

Submitted June 16, 1887.

Decided June 25, 1887,

1. Wills Construction.

When the language of the testator is plain and his meaning

clear, the courts-can do nothing but carry out the will of the testator, if it be not inconsistent with some rule of law. (p. 778.)

2. Wills Construction.

In the interpretation of a will, the true enquiry is, not what the testator meant to express, but what do the words used express, (p. 788.)

3. Wills Construction.

When the will affords no satisfactory clue to the real intentions of the testator, the court must from necessity resort to legal presumptions and rules of construction. But such rules yield to the intention of the testator apparent in the will, and have no application when the intention thus appears, (p. 778.)

4. Wills Construction Evidence.

To aid in ascertaining the true construction of the will, evidence may be received of any facts known to the testator which may reasonably be supposed to have influenced him in the disposition of his property. But parol evidence of the intention of the testator is admissible only in cases when there is a latent ambiguity, (p. 778.)

5. Wills: Voluntas Stat pro Batione.

When a testator has the legal capacity to make a will, he has the legal right to make an unequal, unjust or unreasonable will. Voluntas stat pro ratione. (p. 790.)

6. Wills Devisees.

The rule, that when a devisee, whose estate is undefined, is directed to pay the testator's debts or legacies, he takes an estate in fee, has no application where the estate of the devisee is denned and fixed by the will. (p. 793.)

7. Wills Legacy Interest.

It is an undisputed general rule, that, although a legacy vests, where no special intention to the contrary appears, at the death of the testator, it does not begin to carry interest until a year afterwards. But where the legacy is charged solely on land or given to a child and directed to be paid by a devisee of land in order to make the portion of such child equal that of the devisee of the land it should bear interest from the date of the death of the testator, (p. 793.)

J. W. English, J. B. Menager and J. A. Hutohinson for appellant.

Knight & Couch and W. A. Quarrier for appellee. Snyder, Judge:

In April, 1884, Samuel Couch died at his home in Mason county, the owner of a valuable estate, consisting of both real and personal property, all of which he disposed of by his last will. The will is dated May 15th, 1879, and was duly probated in said county, May 13th, 1884. The first clause of the will is in the following words:

"First. I give and devise unto my son, Peter S. Couch, the farm on which I reside in Mason county, West Virginia, containing about nine hundred and fifty acres; but it being my desire to divide my property as near equally as may be between my two children, Peter S. Couch and Sarah Frances Eastham, I direct my said son, Peter S. Couch, to pay to his sister, Sarah Frances Eastham, the sum of four thousand dollars, and I hereby make the said sum of four thousand dollars a lien and charge upon the real estate aforesaid devised to said Peter S. Couch until the same is paid to said. Sarah F. Eastham or her heirs; but in the event that said Peter S. Couch shall die, leaving no lawful children surviving him, (but leaving his wife, Mary Catharine Couch, surviving him) it is my will and desire that the title to all of my real estate aforesaid, shall pass to and be vested in my daughter, Sarah Frances Eastham, or her children if she be not then living, upon the payment by her, or her said children, to Mary Catharine Couch of the sum of four thousand dollars, but in the event that said Mary Catharine Couch shall not then be living, it is my will and desire that said real estate shall pass to and vest in my said daughter, Sarah F. Eastham, and in case of her death, to her children, without the payment of anything in consideration therefor."

The testator by the second clause of his will gave his daughter, Sarah Frances Eastham, all of his personal estate with the exception of some specific legacies which he gave to others.

By a codicil dated September 8th, 1880, the testator modified said first clause by substituting the words, "two thousand dollars," for the words "four thousand dollars," which 1 have italicised in said clause. This is the only change made in the will by the codicil. (Coueli v. Eastham, 27 W. Va. 796.)

In April, 1886, Peter S. Couch brought the first of these suits in the Circuit Court of Mason county against his sister, Sarah Frances Eastham, and her children and others, for the purpose of having the said will construed. In this suit the plaintiff claims that by the first clause of the will he takes an estate in fee in the farm of 950 acres, defeasible upon his dying without leaving children surviving him, and that if he so dies without children then living, his fee is defeated, and the farm passes to and vests in his sister, if living, and if not, then in her children, and in that event neither he nor the farm is chargeable with the four thousand dollars therein mentioned in favor of his sister. But if he dies, leaving children, and his fee thus becomes absolute, then, when this fact is determined by his death, leaving children, and not till then, does the four thousand dollars in favor of his sister become a fixed charge on the fee of the farm. In other wods, the plaintiff contends that if the contingency happens, which by the provisions of the will reduces his interest to a life estate only, then there is no charge in favor of his sister, and that it is only when and in the event he dies, leaving children, that the charge takes effect and becomes payable.

The said Sarah Frances Eastham also filed her bill in said court against the said Peter S. Couch, her children and others, to have said farm of 950 acres rented to pay the legacy of $4,000 charged thereon in her favor, or to have so much thereof sold as may be required to pay said legacy. In this suit the plaintiff claims, that the plain intent of the first clause of the will is, that the $4,000 is to be paid to her unconditionally; and is to be so paid, whether the said Peter dies leaving children or not, or whether his estate in the farm happens to be an absolute fee or an estate for life only, and that she has a present right to collect and enjoy the same.

There was a demurrer to the bill in the first cause which the court overruled. Answers were filed to each bill, exhibts filed and depositions taken by the respective parties; and on March 12, 1887, the two causes were heard together, and the court entered a decree by which it sustained the claim of the plaintiff in the first cause and dismissed the bill in the second cause, thereby deciding that there is no charge on the farm in favor of the sister unless and until, by the death of Peter, leaving children, it shall be determined that he takes a fee simple estate in the farm, and in that event and then only is there such charge. From this decree Sarah F. Eastham has appealed.

No portion of the will of Samuel Couch, except what has been before given, furnishes any aid in the interpretation of the clause in controversy. The following facts appear in the record: The testator left two children, Peter S. Couch and Sarah F. Eastham. The latter is the wife of Wellington Eastham and the mother of seven children, all of whom are infants and still living. The former was married to his present wife, Mary C. Couch, in the year 1868, eleven years before the date of the will and sixteen before the death of the testator. At the time of his father's death he was about 42 years of age and had no children then nor has he had any since. The wife of the testator died 12 years before he did, and from the time of his wdfe's death until his own death, the testator and the son Peter lived together on the farm of 950 acres. The value of said farm according to the testimony is about $18,000, and its annual rental value from$800 to $1,000. The net value of the personal estate paid over to the daughter under the provisions of the will was $9,719.

The only controverted question before this Court is the true interpretation and effect of said first clause of the will, and even that is narrowed down to the simple enquiry, whether or not the $4,000 therein given to the daughter, is an absolute gift and charge on the farm or merely contingent upon the son taking the farm in fee simple?

The following rules for the interpretation and construction of wills have been fully settled by the Courts of Virginia and of this State:

I. When the language of the testator is plain and his meaning clear, the courts have nothing to do but to carry the expressed will of the testator into effect, if it is not inconsistent with some rule of law. (Whelan v. Reilly, 5 W. Va. 356; Graham v. Graham, 23 Id. 36; Rayheld v. Gaines, 11 Gratt. 1.)

II. In the interpretation of a will, the true enquiry is, not what the testator meant to express, but what the words used, do express. (Burke v. Lee, 76 Va. 386.)

III. Where the will affords no satisfactory clue to the real intention of the testator, the court must from necessity re sort to legal presumptions and rules of construction. But such rules yield to the intention of the testator apparent in the will, and have no application where the intention thus appears. (Tebhs v. 'Duval, 17 Gratt. 349.)

IV. To aid in ascertaining the true construction of the will, evidence may be received of any facts known to the testator which may reasonably be supposed to have influenced him in the disposition of his property, and also as to all the surrounding circumstances at the time of making the will. (Wootton v. Redd, 12 Gratt. 196; Atkinson v. Sutton, 23 W. Va. 197.)

In Burke v. L^ee, the court says: "If there be found a subject which satisfies the disposition of the property as contained in the will, evidence can not be...