Dantzic v. Dantzic

• Citation: 668 S.E.2d 164
• Decision Date: 17 June 2008
• Docket Number: No. 33523.,33523.
• Parties: Steven W. Chip DANTZIC, David Shawn Dantzic, and Karen Sue (Dantzic) Tucker-Marsh, Plaintiffs Below, Appellees, v. Timothy DANTZIC, Executor of the Estate of Luetta Dantzic Emmart Miller, Deceased, Timothy Dantzic, Nathan Dantzic, Carla Emmart, Debra Emmart, and Keyser Church of the Brethren, Defendants Below, Timothy Dantzic, Defendant Below, Appellant.
• Court: Supreme Court of West Virginia

668 S.E.2d 164

Steven W. Chip DANTZIC, David Shawn Dantzic, and Karen Sue (Dantzic) Tucker-Marsh, Plaintiffs Below, Appellees, v. Timothy DANTZIC, Executor of the Estate of Luetta Dantzic Emmart Miller, Deceased, Timothy Dantzic, Nathan Dantzic, Carla Emmart, Debra Emmart, and Keyser Church of the Brethren, Defendants Below Timothy Dantzic, Defendant Below, Appellant.

No. 33523.

Supreme Court of Appeals of West Virginia.

Submitted: March 11, 2008.

Decided: June 17, 2008.

Syllabus by the Court

1. "A circuit court's entry of summary judgment is reviewed de novo." Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "The paramount principle in construing or giving effect to a will is that the intention of the testator prevails, unless it is contrary to some positive rule of law or principle of public policy." Syllabus point 1, Farmers & Merchants Bank v. Farmers & Merchants Bank, 158 W.Va. 1012, 216 S.E.2d 769 (1975).

3. "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 [or she] made his [or her] will." Syllabus point 7, Weiss v. Soto, 142 W.Va. 783, 98 S.E.2d 727 (1957).

4. "In construing a will, effect must be given to every word of the will, if any sensible meaning can be assigned to it not inconsistent with the general intention of the whole will taken together. Words are not to be changed or rejected unless they manifestly conflict with the plain intention of the testator, or unless they are absurd, unintelligible or unmeaning, for want of any subject to which they can be applied." Syllabus point 6, Painter v. Coleman, 211 W.Va. 451, 566 S.E.2d 588 (2002).

5. "Where a will is made it is presumed that the testator intended to dispose of his whole estate, and such presumption should prevail unless the contrary shall plainly appear." Syllabus point 4, Rastle v. Gamsjager, 151 W.Va. 499, 153 S.E.2d 403 (1967).

6. "The law favors testacy over intestacy." Syllabus point 8, In re Estate of Teubert, 171 W.Va. 226, 298 S.E.2d 456 (1982).

7. "If a will was drafted by one who is not a lawyer, a court will be more inclined to assume that the will was written in the language of the lay person and will be more inclined to give effect to the language of the will in accordance with the subjective sense employed by the testator or testatrix, and not according to the technical meaning of the language. . . ." Syllabus point 3, in part, Transamerica Occidental Life Insurance Co. v. Burke, 179 W.Va. 331, 368 S.E.2d 301 (1988).

8. "Legal presumptions and rules of construction may be resorted to only when the language of the will affords no satisfactory clue to the real intention of the testator." Syllabus point 2, Farmers & Merchants Bank v. Farmers & Merchants Bank, 158 W.Va. 1012, 216 S.E.2d 769 (1975).

9. "`"It is well established that the word "shall," in the absence of language in the statute showing a contrary intent on the part of the Legislature, should be afforded a mandatory connotation." Syllabus Point 1, Nelson v. West Virginia Public Employees Insurance Board, 171 W.Va. 445, 300 S.E.2d 86 (1982).' Syllabus point 1, E.H. v. Matin, 201 W.Va. 463, 498 S.E.2d 35 (1997)." Syllabus point 4, State v. Brandon B., 218 W.Va. 324, 624 S.E.2d 761 (2005).

Harley O. Staggers, Jr., Daniel C. Staggers, Staggers & Staggers, Keyser, for the Appellant, Timothy Dantzic, Executor of the Estate of Luetta Dantzic Emmart Miller.

Robert Melody, Keyser, for the Keyser, Church of the Brethren.

Jason R. Sites, Barr Sites & Cissel, Keyser, for the Appellees, Steven W. Dantzic, David Shawn Dantzic, and Karen Susan Tucker-Marsh.

PER CURIAM:

This appeal is from a declaratory judgment action instituted by the appellees asking the Circuit Court of Mineral County to construe the will of Luetta Dantzic Emmart Miller (hereinafter "Mrs. Miller" or "decedent"). Timothy Dantzic (hereinafter "appellant" or "executor"), Executor of the Estate of Luetta Dantzic Emmart Miller, appeals from two orders rendered February 7, 2007. By those orders, the circuit court found that Mrs. Miller died partially testate and partially intestate, and further, that an appraiser should be appointed to value certain real property.¹ On appeal, the appellant first argues that the circuit court's determination as to the effect of the will was incorrect and that the decedent's will disposed of all of her assets, and second, that the circuit court lacked jurisdiction to order an appraisal of nonprobate property. Based upon the parties' arguments, the record designated for our consideration, and the pertinent authorities, we affirm, in part, and reverse, in part, the decisions by the circuit court. The circuit court's determination as to the effect of the will is affirmed. The circuit court's order appointing a special appraiser is affirmed with regard to the court's jurisdiction to order such action, but reversed insofar as it ordered the parties to split the costs of the appraisal.

I. FACTUAL AND PROCEDURAL HISTORY

The facts of the case are largely undisputed. Mrs. Miller, on May 5, 2006, executed a holographic will,² stating, in its entirety, as follows:

I, Luetta Dantzic Emmart Miller, being of sound mind, declare this to be my last will and testament, in my own script, this 5th day of May, 2006.

My estate consists of the residence and grounds at 164 Parkview Drive, Keyser, WV, along with furnishings. In order to divide, it must be sold.

I appoint Tim Dantzic as my Executor/Administrator of the estate, that he be allowed to serve without bond. It will be up to him to sell at best price and pay all outstanding just debts including funeral expenses.

The balance is to be divided as stated: To Tim Dantzic -1/10 portion for serving as Ex./Ad. To Tim Dantzic 1/10 portion for living with me and taking care of the property and looking out for me. To Tim Dantzic 1/10 portion as his legitimate share. 1/10 portion to Chip Dantzic, 1/10 portion to Suzy Marsh, 1/10 portion to Shawn Dantzic. 1/10 portion to Nathan Dantzic (Danny's share) 1/10 portion to Carla Emmart, 1/10 portion to Debra Emmart. 1/10 portion to the Keyser Church of the Brethren[.] 10 equal portions of 10 percent equal[ ] 100%

In 1965 when I was left the total responsibility of the family — it seemed like an insurmountable task. However, with the help of mother and daddy and later Harry and with the love and grace of God we made it and the family Looks pretty good to me.

You've all done very well for yourselves and your family. Remember, you are a family and continue to love one another. I am very proud of you. I love and cherish each one.

                  Your Mother
                  Luetta Dantzic Emmart Miller
                

Following Mrs. Miller's death on May 23, 2006, her holographic will was produced and entered for probate. Appellant was appointed executor of the estate. The appellees filed a declaratory judgment action³ seeking to have Mrs. Miller's will interpreted by the circuit court. As the case progressed, appellees filed a motion titled "Plaintiffs' Motion for Judgment on the Pleadings And/Or Summary Judgment with Respect to Plaintiffs' Amended Complaint." The executor responded thereto, and a hearing was held on February 2, 2007, which resulted in the two orders currently appealed to this Court.

In the first order rendered February 7, 2007, the circuit court found that "the decedent died partially testate and partially intestate." (Emphasis in original). The circuit court found that "the decedent specifically named the assets she considered part of her estate for the purposes of her will and the Court does not have the power to add assets to the decedent's definition of her estate." Further, "[t]he decedent's will in this case clearly indicates that the only estate contemplated by the decedent during the drafting of her will were [sic] the residence and grounds of 164 Parkview Drive and the furnishings thereof." The appellant argued that language in the will, stating that "the balance is to be divided" is a residuary clause disposing of all of the decedent's property; thus, the appellant argued that all of the decedent's assets were covered by the will. However, the circuit court disagreed and held that the word "balance" as used by the decedent "clearly refers to the balance of her estate, as defined by her in her will, once . . . all outstanding just debts and funeral expenses [were paid]." Thus, the circuit court found that the decedent died testate as to the residence and furnishings, but found that the decedent died intestate as to any other properties.

A second order rendered the same day appointed a special appraiser to determine the fair market value of 156.25 acres of real estate, in which the decedent maintained a life estate at her death.⁴ In 1987, the parcel of land had been deeded by the decedent to some of her children, and Mrs. Miller had retained a life estate in the same. Even though the life estate interest extinguished at the time of Mrs. Miller's death and she held no further interest therein to be divided, the executor appraised the value of the land as required on the probate appraisal forms. As part of the probate appraisal form, there is a section with the heading "PART 2: QUESTIONNAIRE OF NONPROBATE REAL ESTATE". Under that heading, there is a question that states as follows: "5. Did the decedent own an interest in any real estate as a life estate including a dower interest?" The box beside of the answer "yes" is checkmarked, indicating Mrs. Miller's life estate interest in the property she had deeded to her children in 1987. Then there is a box asking for the market value of the life estate, and a value⁵ affixed by the executor of the estate.

The appellees herein expressed concern that the value set by the executor was too low and would subject them to a low basis for capital gains purposes if the property was sold...