Foster v. Foster, No. 23054

CourtSupreme Court of West Virginia
Writing for the CourtPER CURIAM; Following Ms. Foster's death
Citation472 S.E.2d 678,196 W.Va. 341
PartiesJ. Gregory FOSTER, Administrator C.T.A. of the Estate of Evelyn N. Foster, Plaintiff Below, Appellee, v. J. Gregory FOSTER, Devisee Under the Last Will and Testament of Evelyn N. Foster, Defendant Below, Appellee, and Judy Monk, Devisee Under the Last Will and Testament of Evelyn N. Foster, Defendant Below, Appellant.
Docket NumberNo. 23054
Decision Date14 February 1996

Page 678

472 S.E.2d 678
196 W.Va. 341
J. Gregory FOSTER, Administrator C.T.A. of the Estate of
Evelyn N. Foster, Plaintiff Below, Appellee,
v.
J. Gregory FOSTER, Devisee Under the Last Will and Testament
of Evelyn N. Foster, Defendant Below, Appellee,
and
Judy Monk, Devisee Under the Last Will and Testament of
Evelyn N. Foster, Defendant Below, Appellant.
No. 23054.
Supreme Court of Appeals of
West Virginia.
Submitted Jan. 10, 1996.
Decided Feb. 14, 1996.
Syllabus by the Court

1. "In reviewing the judgment of a lower court this Court does not accord special weight to the lower court's conclusions of law, and will reverse the judgment below when it is based on an incorrect conclusion of law." Syllabus Point 1, Burks v. McNeel, 164 W.Va. 654, 264 S.E.2d 651 (1980).

2. "The modern tendency is not to hold a will void for uncertainty unless it is absolutely

Page 679

[196 W.Va. 342] impossible to put a meaning upon it. The duty of the court is to put a fair meaning on the terms used and not, as it is sometimes put, to repose on the easy pillow of saying that the whole is void for uncertainty." Syllabus Point 7, In re Estate of Teubert, 171 W.Va. 226, 298 S.E.2d 456 (1982).

Mark E. Wills, Wills & Sadler, Princeton, for Appellee J. Gregory Foster, Devisee.

Randall L. Veneri, Anthony R. Veneri, Veneri & Veneri, Princeton, for Appellant Judy Monk.

PER CURIAM:

Judy Monk, a defendant below and the appellant herein, appeals from an order of the Circuit Court of Mercer County which denied her motion for reconsideration. On February 24, 1995, the circuit court declared the holographic will of Evelyn Foster, dated September 12, 1991, ambiguous and thereby invalid and further determined that Ms. Foster's estate should be distributed according to the laws of intestacy between her two children. After reviewing the record, we agree with Ms. Monk's assertion that the will should not be void for uncertainty. A fair reading of the will reveals Ms. Foster's intention that her daughter, Ms. Monk, receive the farm, house, and contents of the house. Under the terms of the will, Ms. Foster's son, J. Gregory Foster, a defendant below and appellee herein, and Ms. Monk will equally divide any personal items and money remaining after payment of the funeral expenses. Accordingly, we reverse the judgment of the circuit court.

I.

FACTS

The facts of this case are essentially undisputed. On March 23, 1994, Ms. Foster died owning a house and nearly 400 acres of land in Mercer County along with certain personal property. A holographic will purporting to be the last will and testament of Ms. Foster was offered for probate. The will states, in pertinent part:

"I--Evelyn Foster--being of sound Mind + Body--do hereby declare--In the event of my death--I herby [sic ] will the farm--house + contents to go to Judy Foster Monk--any Monies shall be equally divided--after the funeral Expenses--between Greg Foster + Judy Foster Monk--also I do herby [sic ] request that the Farm not be sold! Any personal items shall be equally divided--

"Sincerely--

"Evelyn Foster

* * * * * *

"If you have any doubt about this--Contact Charlie Smith[.]" 1 (Emphasis in original).

See Appendix.

Following Ms. Foster's death, J. Gregory Foster was named administrator C.T.A. of the estate. He filed this action seeking declaratory relief and requesting the circuit court to construe the meaning of the will. Ms. Foster's two children and certain other witnesses were called to testify at trial, but all witnesses were unable to ascertain Ms. Foster's intentions to distribute her property. After hearing the evidence, the circuit court determined the will was ambiguous and therefore invalid. 2

The sole issue on appeal is whether it is possible to put a meaning upon the language used in the will. In all other respects, the instrument meets the requirements necessary for a valid holographic will. See In re

Page 680

[196 W.Va. 343] Estate of Teubert, 171 W.Va. 226, 298 S.E.2d 456 (1982). 3 See also W.Va.Code, 41-1-3 (1923), 4 20 Michie's Jurisprudence Wills § 42 (1993).

II.

DISCUSSION

A. Standard of Review

In our review of this case, we begin by noting that no special deference is accorded the judgment of the circuit court because its conclusion that the will in question was invalid due to uncertainty was purely a legal conclusion. In Syllabus Point 1 of Burks v. McNeel, 164 W.Va. 654, 264 S.E.2d 651 (1980), this Court held:

"In reviewing the judgment of a lower court this Court does not accord special weight to the lower court's conclusions of law, and will reverse the judgment below when it is based on an incorrect conclusion of law."

Accordingly, we conduct a de novo review in determining whether it is possible to attach meaning to the language used in Ms. Foster's will. See generally, Farley v. Sartin and Lee Sartin Trucking Co., Inc., 195 W.Va. 671, 466 S.E.2d 522 (1995) (questions of law...

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5 practice notes
  • Zickefoose v. Zickefoose, No. 11–0073.
    • United States
    • Supreme Court of West Virginia
    • February 10, 2012
    ...conclusion of law.” Syl. pt., 2, Miller, Comm'r v. Moredock, ––– W.Va. ––––, ––– S.E.2d –––– (2011); syl. pt. 1, Foster v. Foster, 196 W.Va. 341, 472 S.E.2d 678 (1996). Moreover, a circuit court may not substitute its findings of fact for those of a family court judge merely because it disa......
  • Zickefoose v. Zickefoose, No. 11-0073
    • United States
    • Supreme Court of West Virginia
    • February 10, 2012
    ...conclusion of law." Syl. pt., 2, Miller, Comm'r v. Moredock, 2011 WL 5830326 (W.Va. - Nov. 17, 2011); syl. pt. 1, Foster v. Foster, 196 W.Va. 341, 472 S.E.2d 678 (1996). Moreover, a circuit court may not substitute its findings of fact for those of a family court judge merely because i......
  • Charleston Nat. Bank v. THRU THE BIBLE, No. 24969.
    • United States
    • Supreme Court of West Virginia
    • July 15, 1998
    ...at all possible, an attempt should be made to ascertain the meaning of a will so that it may be put into effect." Foster v. Foster, 196 W.Va. 341, 472 S.E.2d 678 (1996). In syllabus point seven of Teubert, we The modern tendency is not to hold a will void for uncertainty unless it is a......
  • Bohling v. Bohling, No. S-20-502.
    • United States
    • Supreme Court of Nebraska
    • July 2, 2021
    ...749, 947 N.W.2d 492 (2020). 8. Id. 9. See In re Estate of Casselman, 219 Neb. 516, 364 N.W.2d 27 (1985). See, also, Foster v. Foster, 196 W. Va. 341, 472 S.E.2d 678 (1996) (whether will is invalid due to uncertainty presents legal question). 10. See In re Estate of Brinkman, 308 Neb. 117, 9......
  • Request a trial to view additional results
5 cases
  • Zickefoose v. Zickefoose, No. 11–0073.
    • United States
    • Supreme Court of West Virginia
    • February 10, 2012
    ...conclusion of law.” Syl. pt., 2, Miller, Comm'r v. Moredock, ––– W.Va. ––––, ––– S.E.2d –––– (2011); syl. pt. 1, Foster v. Foster, 196 W.Va. 341, 472 S.E.2d 678 (1996). Moreover, a circuit court may not substitute its findings of fact for those of a family court judge merely because it disa......
  • Zickefoose v. Zickefoose, No. 11-0073
    • United States
    • Supreme Court of West Virginia
    • February 10, 2012
    ...conclusion of law." Syl. pt., 2, Miller, Comm'r v. Moredock, 2011 WL 5830326 (W.Va. - Nov. 17, 2011); syl. pt. 1, Foster v. Foster, 196 W.Va. 341, 472 S.E.2d 678 (1996). Moreover, a circuit court may not substitute its findings of fact for those of a family court judge merely because i......
  • Charleston Nat. Bank v. THRU THE BIBLE, No. 24969.
    • United States
    • Supreme Court of West Virginia
    • July 15, 1998
    ...at all possible, an attempt should be made to ascertain the meaning of a will so that it may be put into effect." Foster v. Foster, 196 W.Va. 341, 472 S.E.2d 678 (1996). In syllabus point seven of Teubert, we The modern tendency is not to hold a will void for uncertainty unless it is a......
  • Bohling v. Bohling, No. S-20-502.
    • United States
    • Supreme Court of Nebraska
    • July 2, 2021
    ...749, 947 N.W.2d 492 (2020). 8. Id. 9. See In re Estate of Casselman, 219 Neb. 516, 364 N.W.2d 27 (1985). See, also, Foster v. Foster, 196 W. Va. 341, 472 S.E.2d 678 (1996) (whether will is invalid due to uncertainty presents legal question). 10. See In re Estate of Brinkman, 308 Neb. 117, 9......
  • Request a trial to view additional results

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