Estate of Fussell v. Fortney

• Decision Date: 12 June 2012
• Docket Number: No. 11–0428.,11–0428.
• Citation: 730 S.E.2d 405
• Parties: The ESTATE OF Roger G. FUSSELL and Andrea M. Simmons, Executrix, Petitioners v. Kristi FORTNEY and Chanda Collette, Respondents.
• Court: West Virginia Supreme Court

730 S.E.2d 405

The ESTATE OF Roger G. FUSSELL and Andrea M. Simmons, Executrix, Petitioners
v.
Kristi FORTNEY and Chanda Collette, Respondents.

No. 11–0428.

Supreme Court of Appeals of
West Virginia.

Submitted May 22, 2012.
Decided June 12, 2012.

[730 S.E.2d 406]

Syllabus by the Court

1. “A circuit court's entry of a declaratory judgment is reviewed de novo.” Syllabus Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995).

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 and Merchants Bank v. Farmers and Merchants Bank, 158 W.Va. 1012, 216 S.E.2d 769 (1975).

3. “When a will charges all of the testator's personal property with the payment of ‘all my just debts', the real estate of the testator subject to a lien indebtedness is to be exonerated by applying first, the income and thereafter, if necessary, the corpus of his personal estate.” Syllabus Point 2, McComb v. McComb, 121 W.Va. 53, 200 S.E. 49 (1939).

4. Under the common law doctrine of exoneration, a devisee is generally entitled to have encumbrances upon real property paid by the estate's personalty, unless the will directs otherwise.

[730 S.E.2d 407]

John J. Wallace, IV, Esq., Joseph A. Wallace, Esq., Wallace Law Offices, L.C., Elkins, WV, Attorneys on behalf of Petitioners.

Harry A. Smith, III, Esq., McNeer, Highland, McMunn and Varner, L.C., Elkins, WV, Attorney on behalf of Respondents.

KETCHUM, Chief Justice:

In this matter we consider whether a decedent's will that directs “all my just debts be paid as soon as conveniently possible after the date of my death” (hereinafter “just debts”), obligates the decedent's estate to pay the mortgage on two parcels of real property devised to the Respondents, Kristi Fortney and Chanda Collette (hereinafter “Respondents”). The Circuit Court of Randolph County determined that the “just debts” clause required the decedent's estate to pay the mortgage on these two properties and deliver an unencumbered interest in the two properties to the Respondents.

In this appeal, Petitioner Andrea Simmons, the executrix of the will (hereinafter “Ms. Simmons” or “executrix”), argues that the “just debts” clause is boilerplate language that should not obligate the estate to pay the mortgage on the two devised properties. Ms. Simmons states that the circuit court erred in its focus on the “just debts” clause and discounted other language in the will showing the decedent's intention to devise his encumbered interest in the two properties to the Respondents.

The Respondents argue that the circuit court's ruling should be affirmed because the will's direction to pay off all of the decedent's just debts is clear and unambiguous.

Upon careful review, and for the reasons set forth herein, we affirm the decision of the circuit court.

I. Facts & Procedural Background

Roger G. Fussell, a resident of Randolph County, West Virginia, died on December 21, 2009, leaving a last will and testament dated November 5, 2009 (hereinafter “will”). The first instruction in the will states, “FIRST: I desire that all my just debts be paid as soon as conveniently possible after the date of my death.” Following this “just debts” instruction, Mr. Fussell's will devised two properties to his daughters, Kristi Fortney and Chanda Collette:

I give ... my daughter, Kristi Fortney ... my right, title and interest in and to my lot and house at 414 6th Street, Glenmore Addition, near Elkins, Randolph County, West Virginia.

I give ... my right, title and interest in and to my lot and house located adjacent to King's Run Road in Randolph County, West Virginia to my daughter, Chanda Collette of Elkins, West Virginia.

These two properties were encumbered by a single deed of trust with a face value of $223,000.00. When this lawsuit was filed, approximately $120,000.00 was still owed on the mortgage.

The will directed that a third daughter, Andrea Simmons, and her husband, were to receive the “rest, residue and remainder of my property, whether the same be real, personal or mixed[.]” ¹ Ms. Simmons was appointed as the executrix of the will.

Ms. Simmons, in her role as executrix, made the January and February 2010 mortgage payment on the two properties left to the Respondents. Ms. Simmons refused to make further mortgage payments after February 2010. The Respondents subsequently filed a complaint for declaratory judgment and injunctive relief in the Circuit Court of Randolph County, arguing that the “just debts” clause required the estate to continue making the mortgage payments. The circuit court held an initial hearing on September 14, 2010, and granted a preliminary injunction requiring the estate to make the monthly mortgage payments.²

[730 S.E.2d 408]

After finding that there were no factual issues for a jury to decide, the circuit court held a final hearing on December 1, 2010. At this hearing, both sides agreed that the issue—whether a “just debts” clause in a will obligates the estate to pay the remaining mortgage on devised real property—was a matter of first impression in West Virginia. The Respondents argued that the plain language of the will required the estate to pay all of the decedent's outstanding debts, including the mortgage on the two properties devised to the Respondents. The Respondents stated that the two properties were covered by a single deed of trust and that if the decedent intended the Respondents to receive his encumbered interest in these properties, the will would have set forth a formula apportioning the percentage of the mortgage that each daughter was responsible for paying. The Respondents also stated that the remaining mortgage on these two properties was relatively small in comparison to the overall value of the estate.

In response, Ms. Simmons argued that the “just debts” clause was boilerplate language that should not obligate the estate to pay the outstanding mortgage on the two devised properties. Ms. Simmons also argued that the decedent left the Respondents his “right, title, and interest” in the two properties and that this language shows the decedent's intention that the Respondents receive the properties subject to the remaining mortgage.

The circuit court ruled in favor of the Respondents and ordered the estate to deliver an unencumbered interest in the two properties to them. The circuit court determined that “[t]he will directed that all his just debts be paid after his death. This includes the debt on the property which Ms. Fortney and Ms. Collette inherited.” (Emphasis added by the circuit court). The circuit court's February 10, 2011, judgment order explains:

The testamentary language requiring the payment of all of Mr. Fussell's debts is inclusive of the debt which is secured by the real estate [that] was devised to the Plaintiffs.

Since Mr. Fussell's will requires that all debts be paid by the Estate, the debt secured by the said Davis Trust Company deed of trust is to be paid by the Estate, resulting in the Plaintiffs' acquiring unencumbered title to the real estate which was devised to them.

Following the entry of this judgment order, Ms. Simmons filed the present appeal.

II. Standard of Review

This appeal follows a declaratory judgment action in the circuit court. Because the purpose of a declaratory judgment action is to resolve legal questions, “a circuit court's entry of a declaratory judgment is reviewed de novo.” Syllabus Point 3, Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995). Further, “a circuit court's ultimate resolution in a declaratory judgment action is reviewed de novo; however, any determinations of fact made by the circuit court in reaching its ultimate resolution are reviewed pursuant to a clearly erroneous standard.” Id., 195 W.Va. at 612, 466 S.E.2d at 463.

III. Analysis

Before addressing the specific question before us, we note that, “[t]he 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 and Merchants Bank v. Farmers and Merchants Bank, 158 W.Va. 1012, 216 S.E.2d 769 (1975). “The intention of the testator is to be gathered from the whole instrument, not from one part

[730 S.E.2d 409]

alone.” Emmert v. Old Nat'l Bank, 162 W.Va. 48, 54, 246 S.E.2d 236, 241 (1978).³ In Hobbs v. Brenneman, 94 W.Va. 320, 326, 118 S.E. 546, 549 (1923), we described the role of the judiciary in ascertaining a testator's intent:

When the intention is ascertained from an examination of all its parts the problem is solved. The interpretation of a will is simply a judicial determination of what the testator intended; and the rules of interpretation and construction for that purpose formulated by the courts in the evolution of jurisprudence through the centuries are founded on reason and practical experience. It is wise to follow them, bearing in mind always that the intention is the guiding star, and when that is clear from a study of the will in its entirety, any arbitrary rule, however ancient and sacrosanct, applicable to any of its parts,...