Loar v. Massey

• Citation: 164 W.Va. 155,261 S.E.2d 83
• Decision Date: 18 December 1979
• Docket Number: No. 14163,14163
• Parties: Leslie J. LOAR, Sr., etc. v. Jeanne MASSEY et al.
• Court: Supreme Court of West Virginia

Page 83

261 S.E.2d 83

164 W.Va. 155

Leslie J. LOAR, Sr., etc. v. Jeanne MASSEY et al.

No. 14163.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1979.

Syllabus by the Court

1. An order to which no objection was made and which was actually approved by counsel, will not be reviewed on appeal.

2. The words "I give, devise and bequeath (personal property to a beneficiary) for her lifetime only . . ." in a will create a life estate; when coupled with a power to "consume as much thereof as may be necessary to keep her in health during her lifetime" the beneficiary may, upon a showing of need, invade the corpus for expenses for food, clothing, medicine, doctor's services and hospital care.

3. It is not error for a trial court in a declaratory judgment suit to construe a will, to set out reasonable procedures which a beneficiary of a trust determined to have been established by the will must follow to prove necessity for invasion of the corpus, absent specification by the testator of such procedures.

4. A legatee of income from a decedent's estate is entitled to the income from the date of testator's death, unless the will provides otherwise.

LaVerne Sweeney, Grafton, for Ruth Ann Welch.

Steptoe & Johnson, Anne R. Williams, Clarksburg, for Jeanne Massey.

HARSHBARGER, Justice:

This appeal is from a declaratory judgment by the Circuit Court of Taylor County construing the will of Ole E. Wyckoff. Executor Leslie J. Loar, Sr., brought the action against the beneficiaries of the will, Jeanne Massey and Bradley Wyckoff Anderson, appellees herein, and Ruth Ann Welch, appellant. He sought construction of the following provision:

"I give, devise and bequeath to Ruth Ann Welsh (sic) for her lifetime only, all of my personal property now consisting of cash in hand in several accounts, stocks, bonds, household goods and furniture, automobile, and the right to Miss Welsh (sic) to consume as much thereof as may be necessary to keep her in health during her lifetime, and at her demise the property remaining shall pass to my granddaughter Jeanne Massey and my grandson, Bradley Wyckoff. . . ."

The executor specifically asked the court to decide: a) what is meant by the phrase "may be necessary to keep her in health"; b) did the testator, by said provision, in fact, set up a trust; c) if a trust was intended, how would the trustee execute it; d) if a trust were not created, would plaintiff disburse all personal property to Ruth Ann Welch and if so, to whom would the beneficiary account for her expenditures from said assets; and e) upon her death, how would the assets remaining in the estate be accounted for and delivered to the other defendant heirs, considering that the will provides for a trustee to administer the fund for Bradley Wyckoff Anderson until he attained his majority. ¹

By order of November 17, 1975, the court found that testator intended that his personalty be placed in trust, ordered the assets put in trust for the three beneficiaries subject to restrictions to be set later, and appointed The Blueville Bank of Grafton, trustee. This order was entered after having been endorsed by counsel for all parties, "Approved."

On June 28, 1977, the court entered a second order which further construed testator's will and which found that testator had granted to Welch a life estate in the personalty with a limited power to consume, and to Massey and Anderson vested remainders subject to defeasance; which set restrictions upon Welch's limited power to invade the trust principal; which specified duties and powers of the executor and trustee in administering the estate; and, which provided that Welch was not entitled to the income from the "trust" until after the estate was settled. This order was signed by counsel for all parties as "Approved as to form only."

Appellant claims: 1) "the Circuit Court erred in deciding Ruth Ann Welch was not entitled to the income from the personal property of Ole E. Wyckoff until the final settlement of the estate was approved by Taylor County Commission; 2) the Circuit Court erred in restricting Ruth Ann Welch's power to invade the personal property of Ole E. Wyckoff to a time she basically proved she was destitute; 3) the Circuit Court erred in deciding the language of Ole E. Wyckoff's will showed an intent to imply that the personal property was to be placed in trust; and 4) the Circuit Court erred in not deciding that Ruth Ann Welch was given a fee simple ownership of Ole E. Wyckoff's personal property."

I.

The order of November, 1975, establishing the trust which is the subject of Welch's third assignment, was entered after having been approved by her counsel. If she objected to the court's construction of testator's will to intend a trust, she should have then excepted. Not now.

This Court has held consistently that no appeal lies from a consent decree. Hunter v. Kennedy, 20 W.Va. 343 (1882), Rose & Co. v. Brown, 17 W.Va. 649 (1881), Manion v. Fahy, 11 W.Va. 482 (1877). In fact an erroneous decree, consented to, is not appealable. Herbert C. Heller & Co. v. Duncan, 110 W.Va. 628, 159 S.E. 52 (1931); 69 A.L.R.2d 781 (1960).

The practice prevailing in the United States Supreme Court as to a litigant's right to appeal from judgment by consent was described in Swift & Co. v. United States, 276 U.S. 311, 48 S.Ct. 311, 72 L.Ed. 587 (1928) as follows:

Under the English practice a consent decree could not be set aside by appeal or bill of review, except in case of clerical error. . . . In this Court a somewhat more liberal rule has prevailed. Decrees entered by consent have been reviewed upon appeal or bill of review where there was a claim of lack of actual consent to the decree as entered . . . or of fraud in its procurement . . . or that there was lack of federal jurisdiction because of the citizenship of the parties. . . . But 'a decree, which appears by the record to have been rendered by consent is always affirmed, without considering the merits of the cause.' (Citations omitted) (276 U.S. at 323-324, 48 S.Ct. at 314)

In Kelly v. Winkler, 351 Ill.App. 145, 114 N.E.2d 335 (1953), an appellate court of Illinois, considering an appeal from an order which had been "O.K.' d" by appellant's counsel, dismissed the appeal thusly:

The law is plain that there can be no appeal from a consent judgment. (Citations omitted) To permit appeals after a final order has been O.K.'d or approved by the party appealing opens the way to imposition on the trial judge and opposing counsel. If as stated in the Edelman case, supra, it was the purpose of the attorney to expedite an appeal, an approval of the order as to form would have accomplished all he wanted. Where an order is presented to a trial court with the unqualified approval of the party injured by the order, the court is not as apt to examine the order as carefully as he would if it were presented without such approval. In the instant case we are satisfied that the able and careful trial judge would not have entered the order before us in its present form if he had not believed that it was an agreed order. In addition, opposing counsel may be misled into failing to protect his record by an unqualified approval of a final order by the opposing party. (Id. at 147, 114 N.E.2d at 336)

The principle that the merits of the adjudication being appealed will not be reviewed if consented to, controls. See, United States v. Allegheny-Ludlum Industries, Inc., 517 F.2d 826 (5th Cir. 1975), Cert. denied, sub nom. 425 U.S. 944, 96 S.Ct. 1684, 48 L.Ed.2d 187 (1976); Harold's Trucking v. Kelsey, 584 P.2d 1128 (Alaska 1978); State v. Huebner, 230 Ind. 461, 104 N.E.2d 385 (1952); Gallup Trading Co. v. Michaels, 86 N.M. 304, 523 P.2d 548 (1974); 4 Am.Jur.2d Appeal and Error, §§ 116, 243.

There is a broader rule underlying the holdings above: objections on non-jurisdictional issues, must be made in the lower court to preserve such issues for appeal. Shackleford v. Catlett, W.Va., 244 S.E.2d 327 (1978); Wheeling Dollar Savings & Trust Co. v. Leedy, W.Va., 216 S.E.2d 560 (1975).

The Syllabus by the Court in State v. Cruikshank, 138 W.Va. 332, 76 S.E.2d 744 (1953), decided under provisions of W.Va.Code, 56-6-35 held that " 'A writ of error to an order of a trial court, to which no objection or exception has been taken, will be discharged as having been improvidently awarded.' Point 1, Syllabus, Baker v. Gaskins, 124 W.Va. 69, 19 S.E.2d 92."

Rule 46 of the West Virginia Rules of Civil Procedure, while liberalizing the strictures of Code, 56-6-35 and common law pleading regarding formal exceptions, requires ". . . that a party, at the time the ruling or order of the court is made or sought, makes known to the court the action which he desires the court to take or his objection to the action of the court and his grounds therefor . . . ."

In Konchesky v. S. J. Groves and Sons Co., 148 W.Va. 411, 414, 135 S.E.2d 299, 302 (1964) this Court in construing Rule 46 wrote: "(I)t has always been necessary for a party to object or except in some manner to the ruling of a trial court, in order to give said court an opportunity to rule on such objection before this Court will consider such matter on appeal." See also: State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964); "Automatic" Sprinkler Corp. of America v. Coley & Petersen, Inc., Va., 250 S.E.2d 765 (1979) (construing Supreme Court Rule 5:21).

In this case, no objection was made to the order; moreover, it was approved without reservation. Therefore we do not review the issue arising therefrom, the imposition of a trust, because it was waived.

Because the court's second order was "approved only as to form," Welch's first, second and fourth assignments arising therefrom are properly before us.

II.

Welch alleges in her fourth assignment that the court erred in finding that she was given a life estate in testator's personalty and not fee simple ownership of it. Upon this we scarcely need...