In re West
| Decision Date | 06 June 2017 |
| Docket Number | No. 16-0410,16-0410 |
| Citation | 801 S.E.2d 237 |
| Court | West Virginia Supreme Court |
| Parties | IN RE: Remains of Chester Howard WEST |
Robert M. Bastress, Jr., Morgantown, West Virginia, Counsel for the Petitioner
John R. Teare, Jr., Spilman, Thomas & Battle, PLLC, Charleston, West Virginia, Counsel for the Respondent
This appeal arises from a petition filed in the Circuit Court of Mason County seeking authorization to disinter the remains of Chester Howard West, a World War I Medal of Honor recipient, and bury him with full military honors at the Gold Star Family Memorial Monument located within the Donel C. Kinnard Memorial State Veterans Cemetery in Institute, West Virginia ("Veterans Cemetery"). Hershel Woodrow Williams, a Medal of Honor recipient, filed the petition for Mr. West to be recognized as a recipient of the highest award a citizen can receive for bravery and valor. In an order dated March 23, 2016, the Circuit Court of Mason County granted Mr. Williams's petition.
Petitioner Roger VanSickle urges this Court to reverse the order below on the grounds that the circuit court lacks the authority to rule on the question of disinterment of Mr. West's remains. Alternatively, Mr. VanSickle argues that the circuit court abused its discretion in concluding that the equities favor disinterment over the wishes of the surviving spouse at the time of Mr. West's death and the living VanSickle family relatives.
Mr. Williams argues that the circuit court properly exercised its equitable jurisdiction and carefully balanced the equities in favor of disinterment of Mr. West's remains. He contends that Mr. West's remains should be moved to the Veterans Cemetery so that he is honored for his heroic service and his grave is properly maintained.
Upon consideration of the parties' briefs and arguments, the submitted record and pertinent authorities, we affirm the March 23, 2016 order of the Circuit Court of Mason County.
Mr. West received the Medal of Honor for his heroic service in World War I. According to facts in the hearing record below and undisputed by the parties, he was a 20-year-old first sergeant in an automatic rifle section of the 363rd Infantry Regiment, United States Army's 91st"Wild West" Division. On September 26, 1918, the opening day of the Allies' Meuse-Argonne Offensive, Mr. West approached German lines near Bois-de-Cheppy, France. Mr. West's Medal of Honor citation stated:
While making his way through a thick fog, his advance was halted by direct and unusual machine gun fire from two guns. Without aid, he at once dashed through the fire and, attacking the nest, killed two of the gunners, one of whom was an officer. This prompt and decisive hand-to-hand encounter on his part enabled his company to advance farther without the loss of a man.
After the war, Mr. West settled in Mason County, West Virginia and married Maggie Elizabeth VanSickle ("Maggie VanSickle") in 1932. On May 20, 1935, Sam McClausland fatally shot Mr. West while Mr. West was working on the McClausland farm in Mason County.
Maggie VanSickle had her husband buried in the VanSickle family cemetery, which is located now within the property encompassing the Chief Cornstalk Wildlife Management Area ("Cornstalk WMA") owned by the State of West Virginia. Once acquired by the State, the road leading to the VanSickle family cemetery was gated. With the passage of time, the road merged with the surrounding forest.
In 2015, a Boy Scout learned of Mr. West's Medal of Honor status and burial in Mason County and sought to locate the VanSickle family cemetery as an Eagle Scout project. The Boy Scout, with the help of family members and other scouts, located the cemetery and cleared it. The work included removal of a large oak tree that had fallen and damaged two of the headstones, including Mr. West's headstone.
Mr. Williams filed his petition on September 14, 2015, seeking authority under West Virginia Code §§ 37-13-1 through 7 (2015) to move Mr. West's remains from the VanSickle family cemetery to the Veterans Cemetery. According to Mr. Williams, his research through the Medal of Honor Foundation ("the Foundation") revealed no next of kin of Mr. West. He also represented that he confirmed that the remains of Mr. West were located in the VanSickle family cemetery, which had been overgrown and only discovered when recently cleared.
In Mr. VanSickle's answer to the Mr. Williams's petition, he noted that family members could have been identified by tax records, land records and phone records. He strenuously objected to moving Mr. West's remains from the VanSickle family cemetery, explaining that even though her husband was a distinguished Medal of Honor recipient, Maggie VanSickle chose to bury him in the family cemetery. Mr. VanSickle also represented that plans had been under way to clear the cemetery when the Boy Scout requested permission to do so as his Eagle Scout project.
The Circuit Court of Mason County conducted its hearing on February 29, 2016, and heard the testimony of five witnesses. Mr. Williams testified that he learned of a Medal of Honor recipient buried somewhere in Mason County from Keith Gwinn, the Secretary of the Department of Veterans Assistance1 in approximately 2012. Several years later, he arranged through a friend to meet with another couple and walk into Cornstalk WMA to the cemetery. Mr. Williams testified it was quite a distance. He further testified that although Mr. West's headstone was broken into two pieces and was so worn by the weather it was difficult to make out, he was able to see part of the name and the unit within which Mr. West served.
Mr. Williams also described that he had arranged for a funeral home to remove Mr. West's remains for reinterment in a new resting place. He testified that the Huntington Police Department would provide an escort and that the Veterans Cemetery would provide Mr. West with a gravesite and full military honors. All of these services would be provided at no cost, according to Mr. Williams.
When asked why he wanted to reinter Mr. West's remains, Mr. Williams testified as follows:
Well, since he is a [M]edal of [H]onor recipient, having received the highest award that our country can give for bravery and valor, we feel that he is entitled to be in a location where people can recognize the service that he did for our country, and that he has earned the right to have a place where others can realize and recognize the fact that he is a hero. So I feel that the [Donel] C. Kinnard [C]emetery, our only West Virginia state veterans cemetery, would be a proper place[,] and they would certainly give all of the care, year-round care, to care for his gravesite.
Robert Sullivan, a police officer assisting the Foundation with information relating to the disinterment of Mr. West's remains, also testified at the hearing regarding the condition of the VanSickle family cemetery. Describing a 2015 trip with Mr. Williams, Mr. Sullivan testified that he only had GPS coordinates to find the cemetery. The road shown on the tax map was not actually there, so they were forced to walk. Mr. Sullivan further testified that the road to the cemetery had not been maintained since the State acquired the land. While walking in, they then came upon a man who told Mr. Sullivan that it had been twenty to thirty years since anyone had actually maintained the road. Mr. Sullivan testified that grass now covered the road. He commented that he never knew the road existed even though he has hunted in Cornstalk WMA for years. Mr. Sullivan stated that he and Mr. Williams walked on a worn path. He further described that the cemetery itself looked "reasonable" when they saw it in 2015 because Boy Scouts had cleaned it up for a project. Nonetheless, Mr. Sullivan noted it was "just so isolated in the middle of nowhere."
Mr. VanSickle testified that Maggie VanSickle remarried and moved to Charleston where she died in 1950. He represented that Mr. West was his great uncle by marriage and that all the other witnesses opposing removal of Mr. West's remains have the same degree of relation as he has to Mr. West. Mr. VanSickle testified that to his knowledge Mr. West had no children or siblings. Mr. VanSickle agreed that the cemetery is a 50-by-65 foot private family cemetery located on State land. He also confirmed that several VanSickle family members are buried in that cemetery. Mr. VanSickle further stated that Maggie VanSickle decided to bury Mr. West at the family cemetery and for that reason, he felt Mr. West should remain there.
Doug Hudson testified that in 2003, the VanSickle family cemetery was in "bad shape." Mr. Hudson explained that the reason the cemetery was in that condition was because it was isolated and nobody could get there. He testified that he attempted to obtain a permit to bring equipment in to clean off the cemetery but was told by Cornstalk WMA officials that he had to walk in and carry his own equipment. He testified he cleaned it off several summers himself but could no longer do it. He further represented that he had some people to help him but could not get a permit. Mr. Hudson did not identify his relationship to Mr. West.
Carolyn Bailey testified that her mother was Maggie VanSickle's niece. Ms. Bailey testified that she firmly believed Maggie VanSickle would have wanted to be buried beside Mr. West. For this reason, Ms. Bailey testified she felt Mr. West's remains should stay in the VanSickle family cemetery. Ms. Bailey speculated that weather conditions in the winter of 1950 prevented Maggie VanSickle from being brought to Mason County for burial. Because more than eighty years had passed and the relatives do not believe that the wishes of Maggie VanSickle should be disregarded, Ms. Bailey suggested that a reasonable alternative would be to build a memorial in Mr. West's honor at the Veterans Cemetery.
On March 23, 2016, the circuit court granted...
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