Gulland v. Gulland

• Decision Date: 15 January 1918
• Docket Number: 39.
• Citation: 94 S.E. 943,81 W.Va. 487
• Parties: GULLAND v. GULLAND ET AL.
• Court: West Virginia Supreme Court

94 S.E. 943

81 W.Va. 487

GULLAND v. GULLAND ET AL.

No. 39.

Supreme Court of Appeals of West Virginia.

January 15, 1918

Submitted January 9, 1918.

Syllabus by the Court.

Being neither final nor appealable, but nevertheless dispositive of a question of pleading, a decree sustaining a demurrer to a part of a bill, and dismissing it as to such part, may be certified for review, under the last clause of section 1 of chapter 135 of the Code of 1916.

An instrument, signed and attested in the manner prescribed for attestation of wills and reading as follows: "I hereby certify that I have heretofore made a will disposing of all my estate, which will has never been revoked by me"--is a codicil, and sufficiently describes the will of which it is intended to be a part, provided the person executing it had previously made only one will.

Such a codicil effects a republication of the will previously made, and sufficiently expresses intent to revive it, in so far as it may be deemed to have been revoked by reason of the nonexistence of children of the testator at the date of the execution thereof and the birth of such children between such date and that of the execution of the codicil.

Certified Case from Circuit Court, Randolph County.

Bill by Georgia E. Gulland against Grace Gulland and others. Demurrer to part of bill sustained, and bill dismissed as to such part, and questions certified. Reversed, and bill reinstated.

S. T Spears, of Elkins, for plaintiff.

POFFENBARGER J.

Under a provision of section 1 of chapter 135 of the Code of 1916 the upholding of a demurrer to a part of a bill in equity and dismissal of the bill as to such part are certified by the court for review here. As the decree is neither final nor appealable, and the question disposed of is one of pleading the certificate falls within both the terms and spirit of the statute, and is therefore well founded. Seeing the desirability of settlement of basic questions of procedure in advance of preparation for final hearing and disposition of causes, with the incident labor, expense, and consumption of time, the Legislature has provided therefor by this act. Postponement of review of the question here presented, until after a final or appealable decree, would obviously inflict the suspense, inconvenience, and delay from which it was the legislative purpose to relieve.

By the portion of the bill so disposed of, the plaintiff set up title in herself, as devisee, to the real estate of which her husband died seised and possessed, upon the following allegations of fact: The husband, having no children at the time, executed a will, March 22, 1910, by which he gave her, after the payment of his debts and two conditional legacies, one to his father and the other to his brother, all of his estate, both real and personal. Two children were born to him afterwards, one July 21, 1911, and the other January 25, 1913. He died in March, 1914, after having executed February 16, 1914, an alleged codicil, which reads as follows:

"I hereby certify that I have heretofore made a will disposing of all my estate, which will has never been revoked by me. John Saudilands Gulland. [ [Seal.]"

This instrument was attested by the number of witnesses requisite to the attestation of a will or codicil. If the execution of the codicil did not effect a republication or revival of the will, the gifts made to the wife are conditional and may never take effect. Section 16 of chapter 77 of the Code provides that if any person die leaving a child, and leaving a will made when such person had no children living, wherein any child he might have is not provided for or mentioned such will, except so far as it provides for the payment of the debts of the testator, shall be construed as if the devises and bequests therein had been limited to take effect, in the event the child shall die unmarried and without issue. Being of the opinion that the execution of the codicil did not amount to a republication or remaking of the will after the birth of the children, the trial court held that the plaintiff has not now any title to the real estate of which her husband died seised and possessed, and accordingly dismissed...