In re Winzenrith's Will
| Decision Date | 18 October 1949 |
| Docket Number | 10147. |
| Citation | 55 S.E.2d 897,133 W.Va. 267 |
| Parties | In re WINZENRITH'S WILL. |
| Court | West Virginia Supreme Court |
Submitted Sept. 13, 1949.
Syllabus by the Court.
1. A proceeding to probate a will bearing date subsequent to that of a will already admitted to probate, in the same court, does not constitute a contest or impeachment of the earlier will, or of the judgment of probate thereof.
2. A probate of a will by a county court, or by the clerk thereof in vacation, later confirmed by the court, under an ex parte procedure for the probate of wills, provided by Code, 41-5-10, does not, in itself, bar the subsequent probate, in the same court, of a will executed by the same testator, on a date subsequent to the date of the earlier will so admitted to probate, where the two wills make different disposition of the testator's property, are otherwise inconsistent, or the will last executed expressly revokes all former wills theretofore made.
Sanders & Sanders Princeton, Hartley Sanders, Princeton, William Sanders Princeton, for plaintiff in error.
Clark M. Thornton, Princeton, W. Cody Fletcher, Princeton, for defendants in error.
Edgar Winzenrith prosecutes this writ of error to a judgment of the Circuit Court of Mercer County, entered on the 30th day of December, 1948, refusing to admit to probate a testamentary paper, dated July 1, 1936, allegedly executed by Nicholis Winzenrith, as his last will and testament, probate of which was refused by the County Court of Mercer County by order dated October 11, 1948.
Before considering the questions raised on this writ, it is necessary to recite what transpired prior to the date when the testamentary paper above mentioned was presented to the County court of Mercer County for probate as a will. It appears from the record that Nicholis Winzenrith, a resident of Mercer County, made a will dated July 15, 1932, by which he bequeathed and devised all of his property to his wife, Liza Winzenrith, and named her as executrix of his estate without bond. Nicholis Winzenrith died April 13, 1945, and his will, of July 15, 1932, was admitted to probate in the County Court of Mercer County, on May 29, 1945. The proceedings under which the said will was probated were ex parte, there was, so far as the record discloses, no contest of said will, either in the county court, or by a suit in equity, which, under the statute, might have been instituted at any time within two years after the final order or probate was entered.
Liza Winzenrith, the devisee under the 1932 will, took possession of the property disposed of thereby, which consisted of Lots Nos. 9 and 10 of Section 16 of the Bee Addition to the City of Princeton, and she occupied this property until her death on April 8, 1948. There was born of the marriage of Nicholis Winzenrith and his wife three children, namely, William Winzenrith and F. L. Winzenrith; and Edgar Winzenrith, plaintiff in error herein.
The record discloses that on July 1, 1936, by testamentary paper bearing that date, but signed and witnessed on July 31, 1936, Nicholis Winzenrith made a new will by which he revoked all former wills made by him, and devised and bequeathed all of his estate, after payment of debts, to his son Edgar Winzenrith, plaintiff in error, to have and to hold in fee-simple forever; and appointed said Edgar Winzenrith executor of his last will, with directions that he be permitted to qualify as such without bond. This will was witnessed by James Harold Martin and C. B. Martin, both of whom testified in this proceeding.
It appears from the record that the will, dated July 1, 1936, was delivered to Edgar Winzenrith, then a child twelve years of age, who turned it over for safekeeping to one Meuriel Bowden. The will was not re-delivered to Edgar Winzenrith until after the death of his mother in April, 1948, after which date Edgar Winzenrith, on October 1, 1948, presented it to the County Court of Mercer County for probate. It appears that testimony was taken before the county court in respect to the execution of the will, and perhaps on questions pertaining to its probate, but whether there was a contest of the will in the county court is not disclosed by the record, and the testimony so taken is not a part of the record before us. The order refusing probate of the 1936 will was entered on October 11, 1948, and, following the entry of that order, Edgar Winzenrith filed his petition for an appeal to the Circuit Court of Mercer County, which court granted such appeal, and held a hearing thereon, during which the testimony of the two subscribing witnesses, and that of Meuriel Bowden and Edgar Winzenrith, was taken, bearing on the execution and subsequent possession of the alleged will, and the reasons why it had not sooner been offered for probate. In the circuit court, Cecil Asbury and Clara Anders filed what they term their joint replication and answer to the petition for the appeal aforesaid, in which they alleged that they had furnished services and supplies to Liza Winzenrith during her lifetime, for which she had agreed to compensate them; and, in effect, that they had a creditor's claim against the estate of Liza Winzenrith which entitled them to intervene in the proceeding. The court permitted them to file their replication and answer, as well as an amendment thereto, and the petitioner demurred to both the original and amended answers. On December 30, 1948, the circuit court entered its final order in the case, overruling the demurrers to the answers of Asbury and Anders, and, after reciting and taking of evidence, introduced in open court in support of the petition, refused to probate the will dated July 1, 1936, and made this order: 'It is therefore, considered by the Court that a contest of the said will exists and that a trial by jury shall be had to determine if this is the true last will of the decedent, to all of which judgment the petitioner, by counsel, excepted.'
We can only surmise the grounds upon which the County Court ofMercer County and the Circuit Court of said county refused to admit to probate, the will of July 1, 1936. But the answers of Asbury and Anders filed in the case set up the probate of the will of Nicholis Winzenrith, dated July 15, 1932, and its regular probate, in an ex parte proceeding; and, stated clearly, that more than two years had elapsed between the date of such probate and the presentation of the 1936 will offered for probate on October 11, 1948.
As stated above, we do not have before us the proceedings before the county court in respect to the 1936 will; but the evidence introduced in the circuit court sufficiently establishes the proper execution of the 1936 will, and we are, therefore, led to assume that the grounds upon which the probate of that will was refused must have been the probate of the 1932 will referred to, and the absence, of any contest of that will, either in the county court, or by a suit in equity within the statutory period permitted by Code, 41-5-11. We are further supported in this view by the arguments of counsel in this case which is largely confined to the question of the legal effect of the probate of the 1932 will.
Sections 1, 2 and 3 of Article 5, Chapter 41 of the Code, covers the duty of the custodian of a will in respect to producing the same; defines the powers of a county clerk with respect thereto; and provides for a procedure to require the production of an existing will; but, so far as we know, there is no statute or rule of law which makes the failure to produce a will within any particular time, after the death of the testator, a ground of attack upon the will iself. In the case at bar, we are not met with a situation where the rights of third parties have intervened, unless it be the claims of persons claiming to be creditors of Liza Winzenrith. The property of which Nicholis Winzenrith died seized is intact, and the title thereto is now vested in either the heirs at law of Liza Winzenrith, or in the plaintiff in error, Edgar Winzenrith. We are not called upon to appraise a situation wherein the rights of innocent purchases for value and without notice have become involved. We are confronted with the naked question of whether the probate of the 1932 will, which probate has become final, bars the probate of a later will, which, in its very terms, revoke the prior will.
A rather extensive study of this question has convinced us that the probate of the will dated July 15, 1932, although regular in every way and now final, cannot be asserted as a bar to the probate of the later will dated July 1, 1936. There is authority for the proposition that where two wills are executed, probate of both may be had and both wills taken into consideration in the disposition of the testator's property. Of course, where the wills are wholly inconsistent, or, as in this case, the later will expressly revokes the former will, there can be no reconciliation of the two, and the final effect would be that the later will when probated, would destroy the effect of the former will, even though the former will had been duly admitted to probate. Furthermore, the time element is not considered of too great importance, for in cases where no question arises out of which principles of estoppel would apply, the beneficiary under the later will would not be barred from presenting the later will for probate. In Wilson v. Wilson, 188 Ky. 53, 221 S.W. 874, 10 A.L.R. 780, a will was admitted to probate which had been held for more than five years, and where the estate had been partially administered. See also Cole v. Shelton, 169 Ark. 695, 276 S.W. 993, 43 A.L.R. 1008.
This question was fully considered in Schultz v. Schultz, 10 Grat 358, 60 Am.Dec. 335, decided in 1853,...
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