Eunyon v. Mills S.

• Decision Date: 04 May 1920
• Citation: Eunyon v. Mills S., 86 W.Va. 388 (W. Va. 1920)
• Court: West Virginia Supreme Court
• Parties: Elizabeth Howerton Eunyon v. Hugh G. Mills et als.

86 W.Va. 388

Elizabeth Howerton Eunyon

v.Hugh G. Mills et als.

Supreme Court of Appeals of West Virginia.

Submitted April 20, 1920.

Decided May 4, 1920.

1. Wills Words from Which Intent Ascertainable Sufficient Though not Technical.

Technical words are not necessary in making testamentary disposition of property; any language which clearly indicates the testator's intention to dispose of his property to certain persons, either named or ascertainable, is sufficient. (p. 391).

2. Same Purpose of Construction is to Find Intent; "Necessary Implication" Means Probability of Intent so Strong Contrary Intentions Cannot be Imputed.

The purpose of construing wills is to arrive at the testator's intention, which must govern, unless it contravenes some principle of law, and when not expressed, such intention may be ascertained by necessary implication from the will considered in its entirety. By necessary implication is meant a probability of intention so strong that an intention contrary to it cannot be imputed to the testator. (p. 391).

3. Same "Children" Mean Immediate Offspring and Not Grand-children.

According to both its legal and ordinary acceptation the term "children" means immediate offspring, and by the use of that term to describe his beneficiaries a testator does not include his grandchildren, unless other provisions of his will make their inclusion necessary to give effect to the will, (p. 192).

(Lynch, Judge, absent).

Appeal from Circuit Court, Mercer County.

Suit for partition by Elizabeth Howerton Eunyon and others against Hugh G. Mills and others. Bill dismissed, and complainant Eunyon appeals.

Affirmed.

W. H. Malcolm and Grover G. Worrell, for appellant.

Sanders & Crockett, A. G. Fox and John R. Pendleton, for appellees.

Williams, President:

Plaintiff claiming to be an heir-at-law of Eobert Mills, deceased, brought this suit against his other heirs-at-law for a partition of the land belonging to his estate. The court denied her relief and dismissed her bill and she has appealed. Eobert Mills was twice married and left children by each one of his wives. Plaintiff is the daughter of Adeline Thompson, a bastard child of Lydia Thompson, who afterwards become the second wife of Eobert Mills, and she claims that her mother was legitimated, and became an heir of Eobert Mills upon his marriage to Ade- line's mother and his recognition of Adeline as his child, by virtue of section 6, ch. 78, Code W. Va, Lydia Thompson first married one Greene Sweeney and had two or three children by him, before she became the wife of Robert Mills. But Adeline was born before Lydia became the wife of said Sweeney, and there is some conflict in the testimony as to whether Adeline was actually the child of Robert Mills or of some one else, or whether he ever recognized her as his child before or after his marriage to her mother. However, in our view of the case, it is not necessary to consider this question, depending as it does upon conflicting testimony, for the reason presently to be stated. Plaintiff claims as a grandchild of Robert Mills, deceased, and states in her testimony that her mother married Anderson Mills, a distant relative of Eobert Mills, and died the year the Civil War closed, years before the death of Robert Mills, and when plaintiff was a small child. She says she was then taken in the home of Robert Mills and raised by him. Robert Mills died in the year 1870, leaving a will in the following language, and which was probated on the 30th of March, 1871:

"Be it remembered that I, Robert Mills, of the County of Wyoming and State of West Virginia, being weak in body but sound in mind and perfect memory blessed be almighty God for the same do make this my last will and testament in manner and form following that is to say, first I will and declare that my son Hugh G. Mills be made an equal heir with my last wife's children, and also to Milley E. McKinney, my oldest daughter I bequeath one dollar and to Emily McKinney, my second daughter I bequeath one dollar and to Marilla Mills my third daughter I bequeath one dollar and to ToTbiths J. Mills I bequeath one dollar and I also hereby appoint William T. Sarver, Benjamin Mills, Aiden Thompson and John Howerton, Esq., executors of this my last will and testament hereby revoking all former wills by be made, in witness whereof I have hereunto set my hand & seal this the 11th day of December, 1869.

The will, properly interpreted, disposes of the testator's property to Hugh G. Mills and the testator's children by his last wife, to the exclusion of plaintiff, a grandchild, whose mother, even if she was made testator's legitimate child, was dead before the will was made. The purpose in construing wills is to determine the intention of the testator, which must be given effect if its provisions are not in conflict with...