Cuppett v. Neilly

• Decision Date: 11 November 1958
• Docket Number: No. 10968,10968
• Citation: 105 S.E.2d 548,143 W.Va. 845
• Parties: D. E. CUPPETT, Jr., Executor, v. James W. NEILLY et al.
• Court: West Virginia Supreme Court

Page 548

105 S.E.2d 548

143 W.Va. 845

D. E. CUPPETT, Jr., Executor, v. James W. NEILLY et al.

No. 10968.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 9, 1958.

Decided Nov. 11, 1958.

Syllabus by the Court

1. In construing a will the intention must be ascertained from the words used by the testator, considered in the light of the language of the entire will and the circumstances surrounding the testator when he made the will.

2. Under Section 1, Article 3, Chapter 41, Code, 1931, a will shall be construed, with reference to the estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.

3. A general legacy is a legacy designated primarily by quantity or amount which may be satisfied out of the general assets of the testator without regard to any particular fund or thing and does not constitute a gift of any particular thing or part of the estate distinguished and set apart from the rest of the property of the testator. A general legacy has no reference to the actual state of the property of the testator but rests upon the assumption that he has sufficient property to provide the legatee with the amount given him.

4. A general legacy may be satisfied out of the general assets of the estate of the testator without regard to any particular fund or thing but a specific legacy is a gift of a particular specified thing, or of the proceeds of the sale of such thing, or of a specified fund, or of a designated portion of such fund.

5. A general legacy is not subject to ademption but a specific legacy is subject to ademption and is adeemed if the thing bequeathed was not a part of the estate of the testator at the time of his death.

6. A specific legacy is not, but a general legacy is, subject to abatement if the estate is not sufficient to satisfy both kinds of legacies.

7. A legacy is presumed to be general rather than specific unless it clearly appears from the will that it is specific.

8. Courts favor general or demonstrative legacies rather than specific legacies.

9. A general legacy of shares of stock does not carry with it any dividends accruing between the death of the testator and the time such legacy is payable and a general legacy of a bond likewise does not carry any interest accruing during the same period of time, but all such income becomes a part of the residuary estate.

10. The word 'contents,' being of comprehensive meaning, must be given its full import unless some distinct ground for regarding it as used in a restricted sense can be derived from the context and a consideration of a will as a whole.

11. With respect to the construction of written instruments, the rule, known as ejusdem generis, that when general words follow an enumeration of persons or things by words of a particular and specific meaning the general words are not to be construed in their widest extent but are to be held as applying to persons or things of the same general kind or class as those specifically mentioned, does not apply to the word 'contents' in a testamentary gift of 'my home * * *, with all the furniture and contents including linens and silverware.'

12. In a testamentary gift of 'my home * * *, with all of the furniture and contents including linens and silverware.', the word 'contents' applies to and includes articles of jewelry in the home and an automobile in a garage which constituted a part of the home.

13. A devise of a home includes not only the dwelling house of the testator but the entire parcel of real estate which constitutes the residence estate.

14. The general rule is that in the absence of a state statute or a testamentary direction to the contrary, the ultimate burden of an estate tax falls on the residuary estate if the residuary estate is sufficient for the payment of the tax.

15. The transfer tax imposed by the statute of this State is an inheritance tax on the right to receive property and in the absence of a testamentary direction to the contrary the ultimate burden of the tax rests upon the property transferred to the beneficiary.

16. A testator may specify which property or class of property shall bear the burden of the tax for which his estate is liable and may direct that the residuary estate or both funds be used for the payment of such tax, but such direction must be clearly expressed in the will.

Jacob S. Hyer, Elkins, Lewis S. Moomau, Moorefield, for appellant.

H. G. Muntzing, Moorefield, for appellee.

HAYMOND, President.

In this suit in equity instituted in the Circuit Court of Grant County in April 1957, the plaintiff, D. E. Cuppett, Jr., Executor of Marion H. Judy, deceased, seeks to have the will of the testatrix construed and its legal effect determined with respect to the rights of numerous defendants who are beneficiaries under the will or creditors of the estate and particularly with reference to the rights and claims of the defendants, James W. Neilly and Linda Lee King, an infant. There being no disputed questions of fact presented by the pleadings, the case was heard upon the bill of complaint, the separate answers of the defendants, James W. Neilly, Linda Lee King, an infant, James Paul Geary, her guardian ad litem, J. Blaine Schaffer, Paul Moon, and Grant County Bank, a corporation, the supplemental answer of the defendant James W. Neilly, his separate demurrers to the bill of complaint and the answer of the defendant Paul Moon, the replication of the defendant James W. Neilly to the answer of the defendant Paul Moon, and the replication of the plaintiff to the answer of the defendant James W. Neilly. From a final decree entered December 14, 1957, denying certain claims of the defendant James W. Neilly as a beneficiary under the third, fourth and eithth paragraphs of the will, this Court, upon his application, granted this appeal on March 3, 1958.

Marion H. Judy died September 29, 1956, leaving a holographic will dated October 19, 1953, which was duly admitted to probate in October 1956 in Grant County and contains eight separate paragraphs. The first and second paragraphs bequeath specified amounts of money to several named beneficiaries; the fifth paragraph gives directions for the burial of the testatrix; the sixth paragraph designates the plaintiff as executor; and the seventh paragraph disposes of certain items of clothing of the testatrix. The meaning and the effect of these paragraphs are not presented or challenged upon this review of the case.

The third, fourth, and eighth paragraphs of the will, the meaning and the effect of which are involved in this appeal, contain these provisions:

'Third: I give to Linda Lee King my home 210 Virginia Avenue, with all the furniture and contents including linens and silverware. I give the above with the provision that Linda Lee King does not sell or dispose of any part of said property until after she reaches the age of twenty one years. I desire her to have the rental of said property if she so desires.

'Fourth: I give to James W. Neilly whose present address is 'Sumerhill' Cullybackey Rd. Ballymena, N. Ireland 1-10,000 2 1/2%-66-71 series Government Bond--100 shares of General Motors Common stock--if there is an Inheritance Tax or Government Tax on this Fourth Bequest I desire it paid out of my estate and not deduct anything from the Bond or General Motors stock----

'Eighth: After the settlement of my estate and everything is paid including marker over grave in Cemetery and all expenses, I desire the balance to be divided equally between Linda Lee King and James W. Neilly.'

At the date of the death of the testatrix there were certain articles of jewelry of the appraised value of $500 in her home at 210 Virginia Avenue in Petersburg, Grant County, West Virginia, and an automobile of the appraised value of $875 in a garage that had been constructed in and made a part of the home. Between October 19, 1953, the date of the will, and September 29, 1956, the date of the death of the testatrix, she had been issued by General Motors Corporation, in addition to the 100 shares of common stock mentioned in the fourth paragraph of the will, 200 shares of such stock by reason of a division or split of stock by the corporation. The testatrix disposed of fifty shares of this stock during her lifetime and at the time of her death was the owner of the remaining 250 shares of such stock.

By the final decree entered December 14, 1957, the circuit court determined various issues between the parties which are not presented on this appeal and in addition held that under the fourth paragraph of the will the defendant James W. Neilly was entitled to only 100 shares of the common stock of General Motors Corporation instead of the 250 shares of such stock owned by the testatrix at the time of her death and that the defendant James W. Neilly was not entitled to the dividends accruing on the stock of General Motors Corporation or the interest accruing on the $10,000 government bond until such stock and bond were transferred to him in the distribution of the estate and that such dividends and interest were assets of the estate; that by the third paragraph of the will the jewelry and the automobile were bequeathed to the defendant Linda Lee King; that all inheritance, estate and income taxes against the estate should be paid from the residuary estate of the decedent; and that none of such taxes should be charged against the property willed to any beneficiary.

The defendant James W. Neilly, who will sometimes be referred to as the defendant, assigns as error in the final decree the foregoing action of the circuit court in construing the third, fourth and eighth paragraphs of the will and in rejecting his contentions as to their meaning and effect in the disposition of the shares of stock, the dividends on the stock and the interest on the bond before their distribution, and the jewelry and the...