Earle. v. Coberly.
| Decision Date | 16 February 1909 |
| Citation | 65 W.Va. 163 |
| Court | West Virginia Supreme Court |
| Parties | Pearl Earle et al. v. Jesse C. Coberly et al. |
A will may operate to bequeath property by necessary implication from the will taken as a whole, even though there is no formal disposition thereof. Such implication, however, must be so strong as to preclude the idea of any other intention on the part, of the testator, (p. 165.)
Testator makes use of the following language in his will in relation to his personal property, viz: "and she the said L. E. is to sell and dispose of my personal property and after paying her for her trouble she can dispose as she thinks best." In the former part of his will he had directed the payment of his debts and had given some pecuniary legacies, but did not direct how they were to be paid. He had also devised to L. E., who was his daughter, a specific lot of land and had made her his executrix. He failed to make any disposition of a large part of his real estate. No other mention is made of his personal property than what is contained in the above quotation. Held, to constitute an absolute gift of his personal property to L. E. (p. 165.)
The right of a pecuniary legatee to have his legacy charged upon the undevised land is superior to the right of the heir, (p. 166.)
An executor who uses his own funds to pay debts and pecuniary legacies, is entitled to be subrogated to the rights of the creditors and legatees, (p. 166.)
Appeal from Circuit Court, Eandolph County. Bill by Pearl Earle and others against Jesse C. Coberly and others. Decree for defendants, and complainants appeal.
Reversed and Remanded.
W. B. Maxwell, for appellants.
Harding & Harding and D'ailey & Bowers, for appellees. Williams, Judge:
This case is here on appeal from a final decree made on the 28th day of January, 1907, by the circuit court of Bandolph county, and involves the construction of a will.
Wm. H. Coberly died in January, 1904, leaving a will by which he disposed of all his personal property, but only a portion of his real estate. He left a widow, Buth Ann Coberly, to whom he gave nothing by his will. His, widow survived him about one month and died, also leaving' a will by which, she gave all her property to a married daughter, Lummie Earle, whom she named as her executrix.
Wm. H. Coberly left only two children as his heirs, the aforesaid Lummie Earle, a married daughter, and a son, Jesse C. Coberly.
In his will he first directs the payment of his debts, but does not make them a charge on any particular fund; next he devises, by specific description, a lot of land in the City of Elkins to his daughter Lummie Earle, and appoints her his executrix. He then gives to four of his grandchildren, viz: Charley H., Delia A., Pearl and Buth Earle, children of Mrs. Lummie Earle, $1,000.00 each, but does not specify how these legacies are to be paid. The will then concludes as follows, viz: "and she the said Lummie Earle is to sell and dispose of my personal property and after paying her for her trouble she can dispose as she thinks best, I have payed my son Jesse Gr. Coberly his portion to him and his children in money and land." There is no residuary devise, and no mention made of other lands of testator.
The will is dated January 7, 1903. Lummie Earle administered on the estate. The personal property amounted to $2,824.75, all of wmich went into her hands.
One of the principal questions presented is: Did the will give Lummie Earle the personal property absolutely; or, was it charged with payments of debts and legacies? The will of the testator is supreme so long as it does not conflict with the general law; and is to be determined from the language usee, taking it as a whole, and from the necessary implications arising therefrom.
Testator did not expressly give Lummie Earle the personalty; bnt he gave her unqualified power to dispose of the proceeds by this language: "She can dispose as she thinks best." Unqualified dominion necessarily imports absolute ownership. Consequently, by necessary implication, she was given the absolute title to all of the testator's personal property; and we hold that this was testator's intention. Underhill on Law of Wills, sec. 463; Page on Wills, sec. 468. "When executors are given uncontrolled powers of appointment, they may appoint for themselves." Page on Wills, sec. 691; Graham v. Graham, 23 W. Ya. 36.
The testator's intention that his debts and these four pecuniary legacies should be paid out of his estate was clearly expressed. He explicitly directs his "just debts" to be paid; and he just as certainly gives these four pecuniary legacies to his grandchildren above named. But he does not state how, or out of what particular property belonging to his estate, he desires either to be paid. Shall the expressed wish of the testator be defeated because he did not designate the particular part of his estate out of which these legacies and his debts should be paid? Certainly not, so long as there are sufficient assets belonging to his estate with which.to effectuate his will.
He left undevised lands worth about $7,000.00. This was more than enough to pay both debts and legacies.
Undevised real estate wTas liable, even under the common law, for the payment of legacies, and also for the payment of general debts when charged on the land. Underhill on Law of Wills, sec. 371; 2 Jarman on Wills, side page 1387; and, a fortiori, is" it liable under the statute which makes real estate belonging to the estate of a decedent, assets for the payment of all debts.
It is true that the personalty is the fund primarily liable for the payment of debts and legacies where both land and personal property are willed generally, and the personalty is not expressly, or by necessary implication, exempted. But, in this case, we have seen that the personalty was exempted by be1* given to Lummie Earle by necessary implication. The ue ^ land was, therefore, the fund primarily liable in the payment of both...
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