In Re: Frank G. G. Conley

• Decision Date: 22 October 1940
• Docket Number: No. 9102,9102
• Parties: In Re: Frank G. G. Conley, Guardian of Fritzie Gay Conley and Carter Meade Conley, Infants
• Court: West Virginia Supreme Court

122 W.Va. 559

In Re: Frank G. G. Conley, Guardian of Fritzie Gay Conley and Carter Meade Conley, Infants

No. 9102

Supreme Court of Appeals of West Virginia.

Submitted September 10, 1940.

Decided October 22, 1940.

1. Wills

Where a will devises a life interest in real estate and provides that upon the death of the life tenant "his share" shall go to certain named beneficiaries, the words "his share" shall be considered to mean the remainder in said real estate after the expiration of the life tenancy.

2. Wills

Where words are used in a will in a context which renders them doubtful or meaningless, they may be substituted by other words, if such substitution will carry into operation the real intention of the testator as expressed in the will, considered as a whole and read in the light of the attending circumstances.

3. Wills

A devise to A for life and, if he dies without heirs of his body, then to B, creates a contingent remainder which vests in B only if and when the contingency occurs.

4. Wills

A devise to A for life, and at A's death, then to B creates a remainder in B which vests immediately upon testator's death.

Error to Circuit Court, Marion County.

Proceeding in the matter of the petition of Frank G. G. Conley, guardian of Fritzie Gay Conley and Carter Meade Conley, infants, for construction of the will of Georgia Hall Conley, deceased, to have the owners of various interests in the estate of Georgia Hall Conley, deceased, denned and their interests specified, and that Frank G. G. Conley as guardian be authorized and directed to join in certain described trust deeds. From an adverse decree, Frank G. G. Conley as guardian appeals.

Reversed and remanded.

J. Harper Meredith and Rollo J. Conley, for plaintiff in error.

Riley, President:

Frank G. G. Conley, guardian of Fritzie Gay Conley and Carter Meade Conley, prosecutes this appeal from a decree of the circuit court of Marion County, construing adversely to the interest of his wards the will of their grandmother, Georgia Hall Conley, deceased.

Appellant filed his petition in the Circuit Court of Marion County, praying, among other things, that the will be construed; that the owners of the various interests in decedent's estate be defined and their interests specified; that, in the event there is interest in the remainder created by the will in the heirs of the body of one Joseph G. Conley as yet unborn, they may be treated as parties unknown, and their interests denned and protected; and that appellant be authorized and directed to join in certain described deeds of trust. In the final decree complained of, the proceeding was transferred to the equity side of the court under Code, 56-4-11, and the petition regarded as a bill in equity.

The petition recites that decedent died seized and possessed of an undivided one-half interest in valuable real estate in Marion County, subject, however, at the time of her death to debts which, together with interest and taxes accruing since her death, amount to the sum of $124,544.76; that she is survived by her husband, Rollo J. Conley, who, in the decree, waived his interest in the real estate, two sons, Joseph G. Conley and the said Frank G. G. Conley, who would have been her only heirsat-law had she died intestate; that Joseph has no children and appellant's only children are his said wards.

On this appeal, error is assigned only to the trial chancellor's construction of the following paragraphs of the will:

"3rd I give to my son, Joseph G. Conley, a life estate in one-half of all my real estate. If he dies without heirs of the body, his share is to go to my granddaughters, Fritzie Gay Conley and Carter Meade Conley.

"4th I give to my son, Frank Gay Gantz Conley, a life estate in one-half of my real estate. At his death his share is to go to my grand-daughters, Fritzie Gay Conley and Carter Meade Conley."

The trial chancellor construed these paragraphs as devising to testatrix's two sons, Joseph G. Conley and Frank G. G. Conley, a life estate each in one-half of testatrix's real estate, and that as to the remainders she died intestate. With this construction we agree only in part.

In the construction of wills, the intention of the testator is the controlling factor, and, if that intention is so expressed that it can be conceived from the provisions of the will, and is not contrary to some positive rule of law, it will prevail. 1 Harrison, Wills and Administration, Section 184; 1 Page, Wills, (2d Ed.) Section 808, Note 1; Hooper, Trustee, v. Wood, 97 W. Va. 1, pt. 3, syl., 125 S. E. 350; Cresap v. Cresap, 34 W. Va. 310, 12 S. E. 527. If the provisions of a will are clear, courts, of course, may not speculate on the testator's intention. Only where testator's real intention does not appear satisfactorily from the plain language used, may resort be had to legal presumptions and rules of construction. First Huntington National Bank, Trustee, v. Mount Holyoke College, 115 W. Va. 113, 175 S. E. 338; Neal v. Hamilton Co., 70 W. Va. 250, 255, 73 S. E. 971. Of course, the intention should be ascertained from the will considered as a whole and read in the light of the surrounding circumstances. Wise, Admr., v. Hinegardner, 97 W. Va. 587, 125 S. E. 597; Hooper, Trustee, v. Wood, supra; Cresap v. Cresap, supra.

The two paragraphs under consideration were inaptly drawn. Each refers to the life tenant's "share" as passing at his death to two named beneficiaries, one, if the life tenant should die without heirs of his body, and the other simply at life tenant's death; whereas each life estate necessarily will cease with the death of its life tenant. Thus it seems that the provisions for the disposal of testatrix's real estate, after the life estates have expired, if taken literally, are without any possible legal operation, and testatrix died intestate as to the remainders.

The words "his share", if taken in their literal sense, are meaningless and create an intestacy. Wherever possible to bring into operation a testator's intention, a court will give such construction to a will as to bring into effect every word or part thereof and such construction will be made as to avoid the creation of an intestacy. Cowherd v. Fleming, 84 W. Va. 227, pt. 3, syl., 100 S. E. 84; Houser v. Ruffner, Admr., 18 W. Va. 244, pt. 4, syl.; 1 Page, Wills, (2d Ed.), Section 815, Note 1, and the cases cited thereunder. This duty embraces the power of a court, if necessary to ascertain a testator's real...