Farmers and Merchants Bank of Keyser v. Farmers and Merchants Bank of Keyser

• Decision Date: 22 July 1975
• Docket Number: No. 13513,13513
• Citation: 216 S.E.2d 769,158 W.Va. 1012
• Parties: The FARMERS AND MERCHANTS BANK OF KEYSER, West Virginia, a corporation, Executor of the Estate of Mary Pauline Gelwicks, Deceased, v. The FARMERS AND MERCHANTS BANK OF KEYSER, West Virginia, a corporation, as Trustee of the First United Methodist Church Foundation, et al.
• Court: West Virginia Supreme Court

Page 769

216 S.E.2d 769

158 W.Va. 1012

The FARMERS AND MERCHANTS BANK OF KEYSER, West Virginia, a corporation, Executor of the Estate of Mary Pauline Gelwicks, Deceased, v. The FARMERS AND MERCHANTS BANK OF KEYSER, West Virginia, a corporation, as Trustee of the First United Methodist Church Foundation, et al.

No. 13513.

Supreme Court of Appeals of West Virginia.

July 22, 1975.

Syllabus by the Court

1. 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.

2. 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.

3. Parol evidence is inadmissible to explain a patent ambiguity in a will.

4. While extrinsic evidence may be admitted to interpret and apply language actually embodied in a will, it may not be used to vary or contradict such language, or to interpolate into a will a clause which is completely nonexistent in the instrument.

5. A court cannot rewrite a will under the guise of construction or construe such will on the basis of speculation or conjecture.

6. Where due to a draftsman's mistake the amount of a specific bequest is inadvertently omitted from the will, parol evidence may not be admitted to explain the testator's intention as to the amount or to supply the omitted language.

Anthony G. Halkias, Charleston, Gary Athey, Keyser, for appellants.

James, Wise, Robinson & Magnuson, Robert E. Magnuson and Joseph S. Beeson, Charleston, Charles W. Smith, Keyser, for appellee.

SPROUSE, Justice:

This is an appeal from the judgment of the Circuit Court of Mineral County in a civil action to construe a will. The judgment interpolated into the will a clause, containing the amount of a specific bequest, which had been omitted during its preparation. The action was instituted by the Farmers and Merchants Bank of Keyser, Executor of the Estate of Mary Pauline Gelwicks, against Jess C. Little, Frances K. Vossler, Charles E. Vossler, Kathryn B. Vossler, Virginia Vossler Lyons, and the Farmers and Merchants Bank in its fiduciary capacities as trustee for the First United Methodist Church Foundation, trustee for the Methodist Children's Home at Burlington, and as trustee for Frances K. Vossler.

Mary Pauline Gelwicks died on June 25, 1971. The paragraph, designated 'THIRD' in her will, provided:

'I hereby direct my Executor, hereinafter named and appointed, to compute an amount of money which, when added to the aggregate amount of all gifts made by me during my lifetime to the Farmers and Merchants Bank of Keyser, West Virginia, a corporation, as Trustee of the First Methodist Church Foundation, to be held, managed, invested, re-invested, and the income used and applied to the payment of the general operating expenses of the First Methodist Church of Keyser, West Virginia * * *.'

Following the first bequest, the testatrix made certain other bequests and then devised the remainder of her estate in equal shares to Jess C. Little; the Bank as trustee for Frances K. Vossler for life and then to Charles E. Vossler, Kathryn B. Vossler, and Virginia Vossler Lyons; and the Bank as trustee for the Methodist Children's Home at Burlington.

The appellants maintained in the trial court that the bequest to the Foundation was so vague and ambiguous that it was impossible to give it a meaningful interpretation thereby rendering the clause inoperative and void. The trial court, however, on its own motion ruled and ordered that Joseph A. Blundon, the attorney who prepared the will, appear and testify concerning the alleged omission of language in the third paragraph.

At a subsequent hearing, Blundon testified, over objection of counsel for the residuary legatees, that he prepared the will in question from an interlinear copy of a prior will. Blundon stated:

'A. * * * I notice that apparently two lines were omitted by the typist from paragraph third of the will, which begins on Page one and continues on Page two. In recalling what Miss Gelwicks' instructions to me were and her dispositive intent, the omission occurs after the comma, the first comma in the first line at the top of Page two, and I do remember what was omitted from that sentence.

* * *

* * *

'A. It was Miss Gelwick's intention to direct her executor to compute an amount, which, when added to the sum of the gifts which she had made during her lifetime to the Methodist Church Foundation equal the sum of $35,000. And I remember quite clearly that this will was prepared by me by reviving and making interlineations in my office file copy of a prior will that I had prepared for her. And the language to carry out that intent was inserted by me in the first sentence of Paragraph third of her will.

* * *

* * *

'A. The direction to the executor appears from the existing language, pertinently beginning Paragraph third, it says, 'I hereby direct my executor hereinafter named and appointed to compute an amount of money which when added to the aggregate amount of all gifts made by me during my lifetime to the Farmers and Merchants Bank of Keyser, West Virginia, a corporation, as Trustee of the First Methodist Church Foundation.' At that point, the language left out was, An amount which would cause this bequest to total the sum of $35,000, * * *.' (Italics supplied.)

At the direction of the testatrix, Blundon had prepared the trust agreement creating the Methodist Church Foundation. During her lifetime, the testatrix contributed $13,510.75. Blundon testified that she was an active participant in her church.

Despite the fact that Miss Gelwicks read the will and initialed each page, she made no comment about it at the time of execution. Blundon testified that the third provision of the new will was essentially the same language used in the prior will, although the former will 'to the best of (his) recollection' provided for 'a set amount and did not provide for any deduction for gifts made during her lifetime.'

Based upon this parol evidence, the circuit court interpolated into the will the clause testified to by Blundon as having been omitted. Having interpolated the language in this manner, paragraph THIRD read:

'I hereby direct my Executor, hereinafter named and appointed, to compute an amount of money which, when added to the aggregate amount of all gifts made by me during my lifetime to the Farmers and Merchants Bank of Keyser, West Virginia, a corporation, as Trustee of the First Methodist Church Foundation, An amount which would cause this bequest to total the sum of $35,000, * * *.' (Omitted language italicized.)

By order, the court instructed the executor to pay the bank, as trustee for the foundation, $35,000, less $13,510.75 given to said foundation during the lifetime of said Mary Pauline Gelwicks, or a balance of $21,489.25 * * *.'

A motion for a new trial and a motion to alter or amend the findings and judgment filed by counsel for two of the three groups of residuary legatees were subsequently overruled by the trial court.

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 poublic policy. Goetz v. Old National Bank of Martinsburg, 140 W.Va. 422, 84 S.E.2d 759; 4 Page, Wills, § 30.4, page 17.

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