Hobbs v. Brenneman.

• Decision Date: 19 June 1923
• Docket Number: No. 4740.,4740.
• Citation: 94 W.Va. 320
• Parties: Robert R. Hobbs, Exr. v. George G. Brenneman et al.
• Court: West Virginia Supreme Court

94 W.Va. 320

Robert R. Hobbs, Exr.

v.George G. Brenneman et al.

No. 4740.

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1923.

Decided June 19, 1923.

1. Wills Parol Evidence of Intention of Testator Admissible Only Where Latent Ambiguity in Will.

Parol evidence of the intention of a testator in the disposition of his estate is admissible only where there is a latent ambiguity in the will. (p. 326).

2. Same Words Should be Given Their Ordinary and Usual Meaning in Construction of Will; Technical Words Presumed to Have Been Used in Technical Sense and so Construed; Words of Established Definite Legal Significance Presumed to Have Been Used in Such Sense, Unless From an Inspection of Whole Will Different Meaning Clearly Appears. In construing a will, words should be given their ordinary and usual meaning; but technical words are presumed to have been used in the technical sense, and are so construed; and words of an established, definite legal signification are presumed to have been used in their definite legal sense, and should be so construed; unless from an inspection of the whole instrument a different meaning clearly appears, (p. 326).

3. Same "Devised," "Bequest," "Legacy," and "Legatee" Presumed Used in Their Sense. Unless From Context of Whole Will Contrary Clearly Appears.

A "devise" in its legal sense means a testamentary disposition of real estate, "Bequest" and "legacy" are words used to denote a disposition of personality. A "legatee" is a person to whom a bequest is made or legacy given. These words, when used in wills, are presumed to have been used in their legal sense, unless from the context or the whole will, it clearly appears to the contrary, (p. 328).

4. Same Devisee not Included in Residuary Bequest to Legatee Unless Intention Clearly Appears.

Where the residuary clause of a will disposes of the remainder of the estate to the "above named legatees" in certain proportions, a devisee named in the will is not included in the residuary disposition unless it clearly appears from the whole will that he was intended to be included, and that the word "legatee" was not used in its established legal sense, (p. 330).

5. Wiles Grandson of Devisee, Held Entitled to Participate

With Legatees.

Where the testator has given to his grandson a legacy of $3,000 to be paid by a devisee to whom he has bequeathed land, and as a condition of the bequest; and has given various money legacies to other persons specifically named; and in the disposition of the residuum of his estate has directed his executor to distribute such residue, if there be a residue after payment of the sums "bequeathed to the above named legatees," to the "above named legatees" in proportion to the amount bequeathed to each of said legatees, "above named"; the grandson is one of the above named legatees, and is entitled to participation in the residuary fund, if any there be. (p. 333).

Appeal from Circuit Court, Hancock County.

Suit by Robert R. Hobbs, executor, against George G. Brenneman and others. From a decree for plaintiff, defendants appeal.

Affirmed in part; Reversed in part.

Erskine, Palmer & Curl, for appellants.

W. W. Ingram and Frank W. Nesbitt, for appellee.

Lively, Judge:

The decree of June 30, 1922, appealed from, construes the will of Cyrus E. Brenneman who died in February, 1919, ascertains the devises and bequests and to whom they shall be paid and directs the executor to sell and reduce to cash all of the property of the testator except that devised in the second and fifteenth clauses of the will. It directs the payment of the debts, funeral expenses and costs of administration, together with the various bequests made; and then directs the executor to distribute the remainder to those parties to whom are bequeathed amounts of money by the 3d, 4th, 5th, 6th, 7th, 8th, 9th, 11th, 12th, 13th and 14th clauses of the will in the relative proportions as the amount of said bequests bear to each other.

There are seventeen items or clauses in the will. The controversy directs special consideration to items 2, 10, and 17. Item 1 provides for the payment of the debts and funeral expenses; item 2 reads as follows: "I give, devise and bequeath to my brother, George G. Brenneman, the farm and premises on which I now reside, situate in Grant district, Hancock county, West Virginia, to be his own forever." Items 3, 4, 5, 6, 7, 8, 9, 11, 12, 13 and 14 "give and bequeath" sums of money to certain named relatives, including relatives of testator's wife, and including plaintiff Robert R. Hobbs, the executor. Item 10 reads as follows: "I will, devise and bequeath to Cyrus Edward Brenneman, son of my nephew, Gerard Brenneman, deceased, the sum of three thousand dollars ($3,000), to be paid to him by my brother George G. Brenneman, as a condition of the bequest to my said brother in item second of this, my will." By the 15th item the testator wills, devises and bequeaths to the heirs of his deceased brother, William J. Brenneman, all his right, title and interest in and to Philicey Island in the Ohio River, Beaver County, Pennsylvania, and concludes with the following words: "This is all I intend said heirs to have out of my estate.'' By the 16th item the testator directs that all of the remainder of his estate, wherever situate, be sold and disposed of as his executor shall deem best, at public or private sale, and authorizes and directs him to execute, acknowl- edge and deliver all proper writings, conveyances and transfers therefor. The 17th item is as follows: "In the event that there is a residue and surplus after the payment of the above sums bequeathed to the above named legatees, I will and bequeath that said residue shall be paid by said executor to the above named legatees in proportion to the amount bequeathed to each of said legatees, above named." Then Robert R. Hobbs, one of the legatees to whom is given the sum of $10,000, is named as sole executor. The will is dated the 4th day of February, 1919, and the testator died two days later.

The appraisement of the estate was $163,252.64, including the land devised to George G. Brenneman in item 2 of the will at $26,000; and the Philicey Island at $500. The debts and taxes as estimated by the executor, amounted to $17,669.33. The various money legacies, including the $3,000 to Cyrus Edward Brenneman, mentioned in the 10th item of the will, amount to $23,800, leaving the approximate amount to be distributed under the 17th clause, the residuary clause, after deducting the debts and taxes, $98,283.31. It is over the distribution of this sum under the provisions of clause 17 that the controversy arises. The appellants, George G. Brenneman and Cyrus Edward Brenneman, a namesake of the testator, and grandson of George G. Brenneman, contend that they should participate with the other beneficiaries in the will in proportion to the amount bequeathed to each of them. Appellees contend that George G. and his grandson, Cyrus Edward Brenneman, are not legatees within the meaning of the residuary clause and are not entitled to any part of the estate under the will except the farm mentioned in item 2, valued at $26,000, from which the legacy of $3,000 to the grandson shall be paid. In other words, that George G. Brenneman shall receive only the farm, burdened with the specific legacy of $3,000 to his grandson; and the grandson is entitled only to the $3,000, and cannot participate in the residuary fund. The decree, as above stated, embodies the contention of appellees. Under the construction given by the lower court, as embodied in the decree, George G. receives the farm only and Cyrus Edward is entitled to the sum of $3,000 only, for the payment of which he must look to his grandfather.

The answer of George G. Brenneman sets out his contention as to the true construction of the will and his right to participate in the residuary fund, the amount and nature of decedent's property, the relationship of the various beneficiaries to the testator and a statement of the next of kin of the testator. In addition thereto the answer alleges that the testator and defendant were the sons of Jacob Brenneman, deceased, who devised to them jointly his farm, which was afterwards partitioned, and upon their respective parts of which they resided in brotherly love and affection and neighborly friendship; that the testator had no children, but showed a deep affection for the children of defendant, George G. Brenneman, and at one time actually prepared a deed conveying to them the farm devised in item 2, but was prevailed upon by defendant and his children not to part with his farm in his life time; that afterwards, the testator had declared at different times that the farm should go to them when he died. This allegation of the bill, upon exceptions, was stricken out as having no bearing upon the question of the true construction to be placed on the will. The answer also sets out the conditions under which the will was made and avers that the testator was unfamiliar with the technical phraseology of the law, and in his will did not use technical expressions but told Cooper, the draftsman, the names of his beneficiaries and how much property and what property he Avanted each to have, and relied on Cooper to put his wishes in suitable language; that Cooper also was unfamiliar with and unskilled in the use and technical meaning of the words used in the will, and that the words, "will," "give," "devise," "bequeath," "bequest," and "legatees," appearing in the will were used in their popular sense and not in their technical sense, and that these words were not used at all by the testator when he told how his property should be disposed of; that in telling Cooper how he wanted to dispose of the balance of his property under the residuary clause he did not use the words "residue," "surplus," "bequeath" and "legatees," at all, but simply told Cooper that the balance of his property was to go to the above named...