Guthrie v. First Huntington Nat. Bank

• Decision Date: 02 July 1971
• Docket Number: No. 12977,12977
• Citation: 155 W.Va. 496,184 S.E.2d 628
• Court: West Virginia Supreme Court
• Parties: Caroline W. GUTHRIE et al. v. The FIRST HUNTINGTON NATIONAL BANK, etc., et al. Mary Frances NISTENDIRK v. The FIRST HUNTINGTON NATIONAL BANK, etc., et al.

Page 628

184 S.E.2d 628

155 W.Va. 496

Caroline W. GUTHRIE et al. v. The FIRST HUNTINGTON NATIONAL BANK, etc., et al.

Mary Frances NISTENDIRK v. The FIRST HUNTINGTON NATIONAL BANK, etc., et al.

No. 12977.

Supreme Court of Appeals of West Virginia.

Submitted May 11, 1971.

Decided June 29, 1971.

Rehearing Denied Dec. 6, 1971.

Dissenting opinion July 2, 1971.

Syllabus by the Court

1. 'The intention of the testator must be given effect in the construction of his will, unless that intention violates some positive rule of law.' Pt. 2, syllabus, Mauzy v. Nelson, 147 W.Va. 764 (131 S.E.2d 389).

2. 'The rule in favor of early vesting of estates should not be applied in the interpretation of a will so as to contravene the expressed intention of the testator.' Pt. 3, syllabus, Tharp v. Tharp, 131 W.Va. 529 (48 S.E.2d 793).

3. A trust does not ordinarily terminate automatically when the time for the termination arrives because the duties of the trustees do not cease upon such termination but continue until their duties have been completed.

4. 'Per stirpes is usually used as a method of division in a substitutional gift to a class because the exact persons to take will not be known until a future time.' Pt. 6, syllabus, Kanawha Valley Bank v. Hornbeck, 151 W.Va. 308 (151 S.E.2d 694).

5. A party cannot take successive inconsistent positions concerning the same fact or state of facts or where a pleading in effect changes a fundamental fact in the case, but there is no inhibition which would prevent a person from successively asserting different conclusions of law where circumstances have changed unless some element of estoppel is involved.

Carney M. Layne, Huntington, for appellant, Staker.

Campbell, Woods, Bagley, Emerson, McNeer & Herndon, Charles F. Bagley, James R. Bailes, Huntington, for appellee, Mary Frances Nistendirk.

BERRY, Judge:

This is an appeal from a final judgment of the Circuit Court of Cabell County, West Virginia, involving two civil actions which were consolidated, both relating to the construction of a complicated will of Ashby J. Wilkinson of Huntington and Barboursville, West Virginia. The appeal was granted June 29, 1970, from a judgment of February 20, 1970, affirming the court's prior decision. The case was submitted for decision on arguments and briefs of the respective parties at the 1971 April Special Docket. The specific question involved is whether the widower of a deceased daughter of the testator takes an interest in the Wilkinson estate residuary trust as a beneficiary under her will, or whether the division of the residuary trust should be in two parts to two other daughters to the exclusion of any part to the third daughter, now deceased, whose share is claimed by her husband, Lewis A. Staker. The trial court held that the residuary trust should be divided into two parts to the two living daughters instead of a three-way division which would have allowed Lewis A. Staker to take his deceased wife's share.

The amount of money involved and to be distributed under Mr. Wilkinson's will is about $180,000. His will was executed on April 5, 1951, and he died March 20, 1952. On April 4, 1951, the day before the will was executed, he and his wife, Lula Z. Wilkinson, by deed, created an inter vivos trust for the benefit of Mrs. Wilkinson consisting of real estate and securities which was anticipated to produce an annual income for her of about $5000. Upon the death of Mrs. Wilkinson the principal and corpus of the inter vivos trust estate was to 'pour over' into the residuary trust contained in Mr. Wilkinson's will which was also to be terminated upon the death of Mrs. Wilkinson and to be divided under the provisions of the residuary clause in his will. The manner of the division of the property of the residuary trust of Mr. Wilkinson's will by the trustees, who are the same under both it and the inter vivos trust, is the entire question involved in these consolidated cases.

A brief outline of Mr. Wilkinson's will is appropriate at this point before discussing the specific parts thereof.

The will provides for the payment of debts, the direct disposition of certain personal property to Mrs. Wilkinson and the buying of a residence for her. It then by Article IV divised to the First Huntington National Bank and R. M. Bagby, a Huntington lawyer, in trust, certain rural land in Barboursville in Cabell County, which apparently was where the testator's home was located, as well as some adjacent land. It provides that the trustees, after testator's death, should sell the land and pay the proceeds quarterly to Mrs. Wilkinson and his three daughters, Caroline Wilkinson Guthrie, Genevra Wilkinson Staker, Mary Frances Wilkinson Nistendirk, to his son Earl Durbin Wilkinson and to a step-son Robert Elbon Stalnaker. It also provides that the share that is to go to his son Earl Durbin Wilkinson is to be retained by the trustees in a special trust fund, with the income to be paid to his son during his life, and if his son's wife, Florence Wilkinson, survived his son such income is to be paid to her during her lifetime and at the death of the survivor the corpus of the special trust fund should revert to his trust estate.

The will mentions the inter vivos trust by way of information, and by Article VI sets up the residuary testamentary trust with the same trustees as the land trust in Article IV, and provides for all the rest of his property, wherever situated, to be contained in the main residuary trust. Broad powers are given to the trustees with directions to pay his widow sufficient money from the income to allow her an income of at least $7500 a year when added to the amount of money she probably would receive from the inter vivos trust, with authority to invade the principal if necessary.

After that, the surplus income is to be paid quarterly to his four children and step-son. It then provides that if any of these persons die prior to the 'termination's of the residuary trust estate the surplus income is to be distributed in the same manner as provided for in the final distribution of the corpus of the residuary trust.

Section I of Article VI provides for the division of the main trust and is the part of the will involved in the disposition of this case. The substance of this section is to terminate the residuary trust upon the death of Mrs. Wilkinson and for the co-trustees to make a final accounting and settlement of their administration and to divide the principal or corpus of the main trust estate among the four children and step-son, but if any of them be dead prior to the 'termination and distribution' of the trust estate then the child or children of the deceased person shall take the share of the decedent, and if there be no child or children then the group narrows so that it is to be divided among the living Wilkinson children and step-son and the child or children of any decedent Per stirpes. Then follows the declaration that it is his intention that the property shall go to his children and step-son or to the children of any deceased one and 'to no other person or persons'. The rest of the will deals with substitute trustees and the executor.

R. M. Bagby, one of the original co-trustees, died and was replaced as co-trustee by Lewis A. Staker who is also the husband of the deceased daughter, Genevra Wilkinson Staker. Mrs. Wilkinson died on July 18, 1967, and the corpus of the inter vivos trust went at that time into the main trust of Mr. Wilkinson's will as created by Article VI.

At the time of Mrs. Wilkinson's death only three of the Wilkinson children were living. Earl Wilkinson died in June of 1959, and left a widow, Florence Wilkinson, who lives in Grafton, West Virginia. While serving in the United States Air Force in the Far East the step-son, Captain Robert Elbon Stalnaker, was in an airplane shot down by Russian fighter planes and was reported as missing July 29, 1953, by the Air Force and was listed as presumed dead by the official records of the Air Force November 15, 1955.

Before the trustees of the residuary trust made their final accounting and settlement of their administration and distribution of the property involved under the trust, the first civil action to construe the will was instituted on December 6, 1967, in which the three living daughters, Caroline Wilkinson Guthrie, Genevra Wilkinson Staker and Mary Frances Wilkinson Nistendirk, joined as plaintiffs to have the death of Robert Elbon Stalnaker officially declared, and they alleged that the right to the residue was vested in the three of them. Before the trial court disposed of this action, Genevra Wilkinson Staker died January 28, 1968, leaving no children, and her entire estate passed by will to her husband, Lewis A. Staker, who qualified as her executor.

After the death of Mrs. Staker, Mrs. Nistendirk took the position that the estate should be divided into two parts instead of three and withdrew from the first civil action. She obtained another attorney and instituted a second civil action in which she asked for the property in the trust estate to be divided two ways. The defendants in the second civil action were about the same as the plaintiffs with her in the first action, except that Lewis A. Staker, who had been substituted in the first action as executor of his wife after her death, was made a defendant in the second suit along with the other trustee. The two suits were consolidated by agreement of the parties and the death of Robert Elbon Stalnaker was officially declared, and it was also agreed and decided by the court that the monies involved in the real estate trust of Mr. Wilkinson's will had been disposed of and were not involved in this consolidated case. The trial court filed a written opinion, which was made a part of the record and which stated that the main question involved was the intent of the testator, Mr. Wilkinson; that under the terms of his will the date of...