Graham v. Graham

• Court: West Virginia Supreme Court
• Writing for the Court: JOHNSON, PRESIDENT:
• Citation: Graham v. Graham, 23 W.Va. 36 (W. Va. 1883)
• Decision Date: 01 December 1883
• Parties: GRAHAM v. GRAHAM et als.

23 W.Va. 36

GRAHAM v. GRAHAM et als.

Supreme Court of West Virginia.

December 1, 1883

Submitted Jan. 18, 1883.

1. The heir will not be disinherited, unless it is done by the express terms of the will or by necessary implication. (p 40.)

2. The heir being favored in law, there should be no strained construction to work a disherison, where the words of the will are ambiguous. (p. 40.)

3. The intention of the testator must be gathered from the will itself, whenever it is possible to do so. (p. 41.)

4. Every word in a will is to have its effect, provided an effect can be given to it not inconsistent with the general intent of the whole will when taken together; and no word is to be rejected, unless there cannot be a rational construction of the will with the word as it is found. (p 41.)

5. It is not necessary to take all the words in a will in the order in which they are placed; as the courts may by transposition so arrange them as to comply with the intention of the testator. But in no case, where the words are plain and unequivocal, is a transposition to be made in order to create a meaning and construction different from that which they naturally had as written; much less to let in different devisees or legatees, or to exclude those already provided for. (p. 41.)

6. Where a former clause is express and particular, no subsequent clause shall be permitted to enlarge it, if the two clauses can stand together. (p. 41.)

7. When a testator in the disposal of his property overlooks a particular event or matter, which, had it occurred to him, he would probably have guarded against, the court will not employ or insert the necessary clause for the purpose of supplying the omission. (p. 41.)

8. Though the inference of intention be more or less strong, yet if not necessary or indubitable, the court will not aid the supposed intention by adding or supplying words. (p. 41.)

9. All the parts of a will are to be construed together, so as, if possible, to form one consistent whole. (p. 41.)

10. The inconvenience or absurdity of a devise is no ground for varying the construction, where the terms are unambiguous but when the intention is obscured by conflicting expressions, it is to be sought in a rational and consistent rather than in an irrational and inconsistent purpose. (p 41.)

11. Words and limitations may be transposed, supplied or rejected, when the immediate context or the general scheme of the will warrant it, but not merely on a conjecture or hypothesis of the testator's intention. (p. 41.)

12. The rule, that the general intent to dispose of the whole property should prevail in preference to any particular intent, applies to cases, where there is exhibited an intention to make a certain disposition of the property, and the mode of executing that intention is erroneously defectively or illegally prescribed in the will, and not to cases, where there is a clear intention to effect another purpose, distinct and differing from the more general object. (p. 42.)

13. If the testator uses language, which can be construed, so as to carry the general intent and purpose into effect, it is the duty of the court so to construe the language as to accomplish that object; but the court is not authorized to supply omissions by adding words even for such a purpose. The testator must express his intention or use such language as will enable the court to ascertain what his intention is, in order to make it effectual. (p. 42.)

14. When implications are allowed, they must be such as are necessary or at least highly probable and not merely possible. In construing a will conjecture must not be taken for implication. Necessary implication means so strong a probability of intention, that an intention contrary to that imputed to the testator cannot be supposed. The whole will taken together must produce the conviction, that the testator's intention was to create the estate raised by implication. (p. 42.)

15. In supplying words in a will the correct rule is to supply such only, as it is evident the testator intended to use, and not such also, as would be necessary to effectuate the supposed intention of the testator. (p. 42.)

16. Where the words " real estate" are not used in the operative clause of the devise itself but are introduced in another part of the will, as in the codicil, by way of recital as to what was in the operative clause, such words so used cannot have the effect nor be construed to extend the meaning of the operative clause. (p. 46.)

The facts of the case appear in the opinion of the Court.

A. C. Houston for appellants.

No appearance for appellee.

JOHNSON, PRESIDENT:

Joseph Graham by his will made the following bequests:

" In the first place I give to my beloved wife Rebecca one third of all my personal property, and also any use she may have need of any part of my land, that may be in possession of her children during her life, in proportion to what they possess.

And in the second place, I give my daughter Betsey Ballenger one hundred acres of land where she now lives, to be laid off according to a writing in her favor, and not to be of the two hundred and eighty-six acre survey which is given by her grandfather's will to her mother.

I also give to my daughter Florence Nowlan ten dollars worth of property.

I also give to my daughter Jane and her daughter Martha each, one dollar a piece, and the rest of my estate personal, to be divided equally among my four sons, and the children of my daughter Rebecca Ballenger, and if they should all die without issue their part of my estate is to be divided among my sons and their heirs as the case may be.

Given under my hand and seal this 26th day of September, 1854.

JOSEPH GRAHAM. [SEAL.]

CODICIL.

Having made my last will and testament of my estate, real and personal, on the 26th day of September, 1854, and in the said will I have bequeathed two thirds of said estate to my four sons and the three children of my daughter, Rebecca Ballenger, and I hereby revoke that share of said estate which is left to my son, Lanty Graham, and after all my just debts are paid, the balance to be divided among three sons and Rebecca's children, as witness my hand and seal this 18th day of October, 1854.

JOSEPH GRAHAM. [SEAL.]"

The will and codicil were admitted to probate, in May, 1858.

In a suit in the circuit court of Monroe county, to have the will construed and partition made of the real estate, of which the said Joseph Graham died seized, it appeared that the legal title to about eighteen hundred and twenty-one acres of land was in said Graham; and it appeared, that he had advanced to some of his children lands, and given them title-bonds therefor: to his daughter, Elizabeth, one hundred acres valued at three hundred dollars; to John Graham seventy-five acres valued at two hundred and sixty-two dollars and fifty cents; to David Graham one hundred and thirty-five acres valued at four hundred and five dollars; to the plaintiff, James Graham, one hundred and thirty-nine acres valued at four hundred and seventeen dollars.

By a decree rendered in the cause on the 21st day of October, 1879, the court construed said will and held, " that the real estate of Joseph Graham, deceased, passed under the said will to David Graham, John Graham, James Graham and the children of Rebecca Ballenger, and that Florence Nowlan took nothing under said will except the specific bequest of ten dollars." The decree proceeds to appoint three commissioners to lay off said land into four equal parts and to assign the same, one to David Graham, one to John Graham, one to James Graham and the other to the children of Rebecca Ballenger, and report to the court, so that a final decree could be made.

From this decree Lanty Graham and the heirs of Florence Nowlan appealed and assign as error, that the court held, that Joseph Graham by his will disposed of all his real estate.

It is evident from the decree of the circuit court, that words were supplied in order to make effectual the supposed intent of the testator. It was held by this Court in Houser v. Ruffner, 18 W.Va. 244, that in construing wills, words and expressions of doubtful meaning will not be construed, if it can be avoided, so as to create an intestacy. The testator having made his will will be presumed to have intended to dispose of his whole estate, unless the contrary plainly appear. While this is true, there is another rule quite as binding on the court in the construction of a will, viz., that the heir must not be disinherited, unless it is done by the express terms of the will or by necessary implication. ( Irwin v. Zane, 15 W.Va. 646.) The heir at law never takes by the act or intention of the testator. His right is paramount to and independent of the will, and no intention of the testator is necessary to its enjoyment. On the contrary, such right can only be displaced or precluded by direct words or plain intention, evincing a desire upon the part of the testator, that he shall not take, & c. He needs no argument or construction showing intention in his favor to support his claim. They belong to the party claiming under the will and in opposition to him. Augustus v. Seabolt, 3 Metc. (Ky.) 155. In Creswell v. Lanson, 7 Gill. & Johns. 227, it was held, that the heir being favored in law, there should be no strained construction to work a disherison, where the words are ambiguous.

In the will before us, in order to make effectual the supposed intent of the testator, to disinherit several of the heirs the clause in the will which provides, " and the rest of my estate personal to be divided equally among my four sons and the children of my daughter Rebecca Ballenger," was changed by the interpolation of the words "...