Dingess v. Drake

• Court: West Virginia Supreme Court
• Writing for the Court: LOVINS; Edward Dingess and Rhoda Wilson instituted this suit in the Circuit Court of Logan County against Mollie Drake, Aileen Drake Dye, Naaman Jackson, Alice Dingess, David Dingess, Inia Dingess, Barry Conley, Will Neal, Hugh Conley
• Citation: Dingess v. Drake, 135 W.Va. 502, 64 S.E.2d 601 (W. Va. 1951)
• Decision Date: 05 May 1951
• Docket Number: No. 10312,10312
• Parties: DINGESS et al. v. DRAKE et al.

Page 601

64 S.E.2d 601

135 W.Va. 502

DINGESS et al. v. DRAKE et al.

No. 10312.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1951.

Decided March 1, 1951.

Rehearing Denied May 5, 1951.

Syllabus by the Court.

An unmarried testator made his will in 1894 and departed this life in 1895. By the first paragraph of his will he devised a life estate in certain lands to his sister, and a remainder in such lands to his two grandnieces whom he had reared. By the second paragraph of his will he devised all the residue of his land to the two grandnieces. The third and fourth paragraphs of his will contained unchallenged bequests of his personal property. The fifth paragraph of his will provides: '5th: In the event that said Mollie and Yantie die without issue then and in that event I give and bequeath said real estate herein bequeathed to Edward Dingess & Rhoda Dingess, children of James I. Dingess.' The grandnieces survived the testator's sister. One of the grandnieces departed this life in 1937, without issue surviving. The other survives and has issue. In a suit to construe the will brought by Edward Dingess and Rhoda Dingess, held:

(1) Though the will is unambiguous, this Court will declare the meaning and give effect to the intention of the testator.

(2) The two grandnieces, upon the death of the life tenant, took a base or qualified fee in the lands devised by the first paragraph of the will, subject to be divested upon the death of both of the grandnieces without issue surviving.

(3) A base or qualified fee in all of the other lands of which the testator died seized and possessed was devised to the two grandnieces, subject to be divested upon the death of both of the grandnieces without issue surviving.

(4) The death of one of the grandnieces, without issue surviving, did not cause a partial defeasance of the estate devised to them.

(5) A base or qualified fee is transmissible under the statute of descent, by will, or deed of conveyance, subject to a defeasance upon the occurrence of the contingency upon which such estate is limited.

Charles L. Estep, Mark T. Valentine, Casto & Wilson, and R. H. Casto, all of Logan, for appellants.

M. O. Litz, H. D. Rollins, Charleston, for appellees.

LOVINS, Judge.

Edward Dingess and Rhoda Wilson instituted this suit in the Circuit Court of Logan County against Mollie Drake, Aileen Drake Dye, Naaman Jackson, Alice Dingess, David Dingess, Inia Dingess, Barry Conley, Will Neal, Hugh Conley, J. W. Brown, W. D. Wilson, Charlie Conley, Tennessee Turner, Carl J. Wiedeman, Mary Scaggs, Casey Scaggs, Elva Scaggs, Arizona McComas, Mary A. Farmer, O. M. Conley, Merrill Coal Mines, Inc., a corporation, and United Fuel Gas Company, a corporation, defendants, The judge of the Circuit Court of Logan County, considering himself disqualified to hear and determine this suit, transferred the same to the Circuit Court of Kanawha County. The suit having been submitted on pleadings and proof, the trial court entered a decree upholding the contentions of plaintiffs. From that decree defendants, Mollie Drake, Aileen Drake Dye, Naaman Jackson, Carl Wiedeman, Merrill Coal Mines, Inc., and Lawson Heirs, Inc., prosecute this appeal, and they will be hereinafter designated collectively as defendants.

We note that Lawson Heirs, Inc., is not a party to this suit, though the name of that corporation is appended to the petition for an appeal. It is also noted that a number of defendants who are parties defendant do not appeal from the decree pronounced by the Circuit Court of Kanawha County.

The principal question here presented relates to the construction of the will of Hugh Toney, a resident of Logan County, who died in 1895.

The will, omitting the formal parts, reads as follows:

'1st: I give and bequeath [sic] to my beloved sister, Mary Toney, all my right, title and interest in and to real estate derived from my Father, William Toney, deceased, and Overton Toney, deceased, during her Natural life and after her death, to Mollie Dingess and Yantie Dingess children of Allen Dingess, deceased, to the survivor or survivors of them.

'2nd: I give and bequeath [sic] all my other real estate to Mollie Dingess & Yantie Dingess, children of said Allen Dingess, deceased.

'3rd: I give and bequeath to my sister, Mary Toney, all my personal property and also in [sic] Thousand Dollars in debts '4th: I give and bequeath to said Mollie and Yantie Dingess, all the balance of my personal estate, including money debts dues & demands.

'5th: In the event that said Mollie and Yantie die without issue then and in that event I give and bequeath [sic] said real estate herein bequeathed [sic] to Edward Dingess & Rhoda Dingess, children of James I. Dingess.'

The sixth paragraph appointed S. S. Altizer executor of the will, and requires no further mention.

The oral testimony is helpful but not controlling in disposing of this controversy. It is shown by such testimony that Hugh Toney, unmarried, was the owner of a store at or near Chapmanville, in Logan County; that he was in comfortable circumstances; that in addition to operating his store he was engaged in timbering operations. Yantus Dingess and Mollie Dingess were the orphan grandnieces of Hugh Toney and lived with him in his home. Mary Toney, an unmarried sister of the testator, also lived with him. The exact date of Mary Toney's death is not disclosed, but it is a reasonable assumption that she departed this life sometime before the institution of this suit. The plaintiffs, Edward Dingess and Rhoda Dingess, the latter being hereinafter referred to as Rhoda Wilson, are the grandnephew and grandniece of the testator. They lived on the opposite side of the Guyan River near the testator's home. Edward Dingess, at the time of his uncle's death, was approximately twenty years of age and Rhoda Wilson was approximately thirteen years of age.

Yantus Dingess and Mollie Dingess were reared and cared for by the testator and his unmarried sister as if they were the testator's children. The testator and his sister seemed to have also loved and cherished Edward Dingess and Rhoda Wilson, the latter, when a small child, having frequently visited the testator's home. The parents of Edward Dingess and Rhoda Wilson survived the testator and were, at the time of his death and thereafter, in prosperous circumstances.

Yantus Dingess intermarried with Naaman Jackson and will be hereinafter referred to as Yantus Jackson. She departed this life in the year 1937, without issue surviving. Her husband, Naaman Jackson, survived her. Mollie Dingess intermarried with Leo F. Drake and will be hereinafter designated as Mollie Drake. She is living and has issue. The defendant, Aileen Drake Dye, is her daughter and that daughter is the mother of one or more children, now living.

Hugh Toney executed his last will and testament under date of February 2, 1894, the attesting witnesses being J. A. Nighbert, T. C. Whited and S. S. Altizer, S. S. Altizer was the draftsman of the will, its executor, and, at the time it was written as well as the time it was probated, was the Clerk of the County Court of Logan County, West Virginia.

The will was admitted to probate on March 21, 1895, upon the testimony of two of the attesting witnesses. The admission to probate was approved by the County Court of Logan County on June 10, 1895. The subscribing witnesses, the executor, the members of the county court at the time the will was probated, and the deputy clerk of such court, who acted in admitting the will to probate, are now deceased.

This suit was instituted June 9, 1938. The final decree herein was entered on December 28, 1949. The trial court held that Mollie Drake and Yantus Jackson took the land mentioned in the first paragraph of the will, subject to the life estate of Mary Toney; that upon the death of Mary Toney, Yantus Jackson and Mollie Drake were vested with a fee simple by survivorship, and that upon the death of Yantus Jackson, Mollie Drake and her grantees were vested with a fee simple estate in such land. The trial court further decreed that Mollie Drake and Yantus Jackson each took a base or qualified fee in a one-half undivided interest in all the residue of the lands of the testator devised by the second paragraph of the will; that the base or qualified fee so taken by them was determinable as to a one-half undivided interest upon the death of either Mollie Drake or Yantus Jackson without issue surviving; and that the one-half undivided interest of Yantus Jackson, upon her death without surviving issue, vested in Edward Dingess and Rhoda Wilson in fee simple, subject to the rights of any persons created by deeds, conveyances or writings made by Edward Dingess and Rhoda Wilson, or either of them, affecting their interest in the lands. The decree further held that Edward Dingess and Rhoda Wilson were entitled to a contingent interest in the remaining one-half undivided interest in the lands referred to in paragraph two of the will, which would become vested only if and when Molly Drake should die, without issue living at the time of her death.

The trial court restricted its decree to a construction of the will of Hugh Toney as it affects the lands disposed of by such will, and reserved for future consideration and determination the rights of persons arising independently of such will or otherwise.

Before considering the controlling paragraphs of the will it is appropriate to say that the third and fourth paragraphs of the will disposed of personal property, and no question having been raised as to the disposition of such property, the consideration of those paragraphs is of no moment except insofar as they may be considered as undicia of the testator's intention.

It is seen from the foregoing that the determination of this suit depends upon the meaning and effect given the fifth paragraph of the will. If it conceded by plaintiffs that the fifth paragraph...