Foy v. County Com'n of Berkeley County

• Decision Date: 28 March 1994
• Docket Number: No. 21831,21831
• Citation: 191 W.Va. 29,442 S.E.2d 726
• Parties: Lois FOY, Herbert V. Jones, Jr. and Shirley Alta Jones, Petitioners, v. COUNTY COMMISSION OF BERKELEY COUNTY; Eula Jones; and Maria L. Childers, in her Capacity as Fiduciary Supervisor of the County Commission of Berkeley County, Respondents.
• Court: West Virginia Supreme Court

Page 726

442 S.E.2d 726

191 W.Va. 29

Lois FOY, Herbert V. Jones, Jr. and Shirley Alta Jones, Petitioners, v. COUNTY COMMISSION OF BERKELEY COUNTY; Eula Jones; and Maria L. Childers, in her Capacity as Fiduciary Supervisor of the County Commission of Berkeley County, Respondents.

No. 21831.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 18, 1994.

Decided March 28, 1994.

SYLLABUS BY THE COURT

1. " ' "A statute is presumed to operate prospectively unless the intent that it shall operate retroactively is clearly expressed by its terms or is necessarily implied from the language of the statute." Syllabus Point 3, Shanholtz v. Monongahela Power Co., , 270 S.E.2d 178 (1980).' Syllabus Point 2, State ex rel. Manchin v. Lively, 170 W.Va. 672, 295 S.E.2d 912 (1982)." Syl. pt. 4 Arnold v. Turek, 185 W.Va. 400, 407 S.E.2d 706 (1991).

2. W.Va.Code, 41-1-6 [1975], provided, in part that, "[e]very will made by a man or woman shall be revoked by his or her marriage, annulment or divorce, except a will which makes provision therein for such contingency[.]" The amendments to W.Va.Code, 41-1-6 [Supp.1992], effective after June 5, 1992, provide that, "[i]f after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, ..., unless the will expressly provides otherwise." The primary difference between the 1975 version of the statute and the 1992 version of the statute is that the former, with certain exceptions, essentially revokes the entire will by marriage, divorce or annulment. The amended version only revokes the disposition of the property made by the will to the former spouse upon divorce or annulment. Marriage no longer revokes a will.

3. When a decedent executed a will in 1986, married in 1990, and died in 1992, the will was revoked pursuant to W.Va.Code, 41-1-6 [1975], which provides that a subsequent marriage revokes a will. The will was not revived because it was not re-executed pursuant to W.Va.Code, 41-1-8 [1923], which requires that a will be re-executed in order for it to be revived.

Robert D. Aitcheson, Charles Town, for petitioners.

Janet L. Scalia, Asst. Pros. Atty., Martinsburg, for respondents.

McHUGH, Justice:

This case is before this Court upon the certified questions of the Circuit Court of Berkeley County, West Virginia. The petitioners, Lois Foy, Herbert V. Jones, Jr., and Shirley Alta Jones are children of Herbert Vauter Jones, Sr., who is now deceased. The respondents are the County Commission of Berkeley County, Eula Jones, the widow of the decedent, and Maria L. Childers, the fiduciary supervisor of the Berkeley County Commission.

I.

Herbert Vauter Jones, Sr., died on June 10, 1992. Petitioner Foy was named, in the decedent's will, as the executrix and a beneficiary.

At the time of the execution of the will, the will being dated March 24, 1986, the respondent, Eula Jones, resided with Herbert V. Jones, Sr., but they were not married at that time. In November, 1986, Mr. Jones, Sr. changed the beneficiary in his accidental death and dismemberment policy and made Eula Jones the beneficiary of such policy proceeds. Eula Jones and Herbert V. Jones, Sr. were later married on September 21, 1990.

II.

Following the death of her father, on June 22, 1992, petitioner Foy presented the decedent's will, to respondent Childers, the fiduciary supervisor of Berkeley County, for admission of the will to probate and qualification as petitioner Foy as executrix. However, respondent Childers refused to admit the will to probate but did submit the will to the Berkeley County Commission. Thereafter, on June 23, 1992, petitioner Foy filed a petition for probate before the county commission. Eula Jones, assuming the will was void, was permitted by the county commission to qualify as the administratrix of the decedent's estate.

On October 1, 1992, the Commission held a hearing and found the will to be void and would not admit the will to probate on the grounds that the decedent's marriage to Eula Jones revoked the prior will under the provisions of W.Va.Code, 41-1-6 [1975], in effect on the date of the marriage.

On January 20, 1993, the petitioners filed a petition before the circuit court asking, in relevant part, that the court reverse the ruling of the county commission and admit the decedent's will to probate. The petitioners further requested declaratory relief by asking the court to find that the provisions of W.Va.Code, 41-1-6 [Supp.1992], ¹ as amended and effective June 5, 1992, are operative and applicable to the estates of persons dying after June 5, 1992. On March 8, 1993, a hearing was held and the circuit court and counsel certified the following two questions to this Court:

1. Are the provisions of W.Va.Code, 41-1-6, effective June 5, 1992, applicable to all testators who die on or after June 5, 1992?

2. If a married person dies after June 5, 1992, do the provisions of W.Va.Code, 41-1-6, effective June 5, 1992, operate to revive his last will and testament executed by him prior to his marriage and prior to June 5, 1992?

The circuit court answered both questions in the affirmative.

III.

The underlying issue within these two certified questions is whether the will is valid in light of the decedent's marriage to Eula Jones and the recent amendments to W.Va.Code, 41-1-6 [Supp.1992].

Prior to June 5, 1992, W.Va.Code, 41-1-6 [1975] read as follows:

Every will made by a man or woman shall be revoked by his or her marriage, annulment or divorce, except a will which makes provision therein for such contingency, or will which, though not making provision for such contingency, is made in exercise of a power of appointment, when the estate thereby appointed would not, in default of such appointment, pass to his or her heirs, personal representative, or next of kin: Provided, that even when the estate thereby appointed would, in default of such appointment, pass to his or her heirs, personal representative, or next of kin, such will shall, nevertheless, not be revoked (a) by such marriage if such marriage is between the person appointed in the exercise of such power of appointment and the person exercising such power of appointment, or (b) by such annulment or divorce, unless the person appointed in the exercise of such power of appointment is the person whose marriage to the person exercising such power of appointment was terminated by such annulment or divorce.

(emphasis added).

Following the June 5, 1992, amendments, W.Va.Code, 41-1-6 [Supp.1992] read:

If after executing a will the testator is divorced or his marriage annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise. Property prevented from passing to a former spouse because of revocation by divorce or annulment passes as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse are interpreted as if the spouse failed to survive the decedent. Notwithstanding the provisions of section three [ § 41-3-3], article three, chapter forty-one of this code, the share of such spouse shall be distributed according to the residuary clause of the decedent's will or according to the statute of intestate succession for the decedents property. If provisions are revoked solely by this section, they are revived by testator's remarriage to the former spouse. For purposes of this section, divorce or annulment means any divorce or annulment which would exclude the spouse as a surviving spouse. A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section. No change of circumstances other than as described in this section revokes a will.

(emphasis added).

The relevant differences between the old and new versions of the statute as they relate to the facts in this case are as follows. The former version of the statute provided that if a person made a will and then subsequently married, the marriage would revoke the will entirely unless the testator made a provision regarding marriage. The amended version of the statute has abolished the rule that a subsequent marriage revokes a will. The statute now provides that upon the divorce or annulment of the testator's marriage, the testator's will is revoked with regard to the former spouse unless the will provides otherwise. It is the former version of the statute that is applicable to this case because the focus is on when the testator married rather than when the testator died. Because a marriage under the former version of the statute revoked the will, it cannot be revived without re-execution of the same. See W.Va.Code, 41-1-8 [1923].

A.

The first certified question simply asks whether the provisions of W.Va.Code, 41-1-6, effective after June 5, 1992, are applicable to all testators who die on or after June 5, 1992. With respect to this first certified question, the parties agree with the circuit court's conclusion that the amendments to W.Va.Code, 41-1-6 [Supp.1992] should be applied prospectively.

There is a presumption of prospective application of statutes unless the intent for retroactive application is expressed within the statute. We have recently reiterated this principle in syllabus point 4 of Arnold v. Turek, 185 W.Va. 400, 407 S.E.2d 706 (1991), in which we held:

' "A statute is presumed to operate prospectively unless the intent that it shall operate retroactively is clearly expressed by its terms or is necessarily implied from the language of the statute." Syllabus Point 3, Shanholtz v. Monongahela Power Co., , 270 S.E.2d 178 (1980).'...