Lynch v. Spicer
| Decision Date | 28 April 1903 |
| Citation | 44 S.E. 255,53 W.Va. 426 |
| Parties | LYNCH v. SPICER et al. |
| Court | West Virginia Supreme Court |
Submitted January 19, 1903.
Syllabus by the Court.
1. A will gives pecuniary legacies, indicating no other fund for their payment, and there is no other personalty for their payment, and then directs a farm to be sold, "and, after paying all my debts, the balance to go to my daughter Ella Spicer, except" certain other after-named legacies. Ella Spicer takes as residuary legatee, and all the legacies are to be paid out of the proceeds of the farm.
2. When a will directs land to be sold, its proceeds are regarded as personalty at the death of the testator.
3. If manifest from the will that legacies are to be paid in any event, the implication is that the residuary legatee gets only after payment of such legacies.
4. The court disapproves the allowance by courts of exorbitant fees to attorneys out of dead men's estates.
5. Realty is chargeable with legacies, if the will discloses such intent.
Appeal from Circuit Court, Monroe County; J. M. McWhorter, Judge.
Bill by C. E. Lynch, administrator, against Ellen Spicer and others. Decree for plaintiff, and defendants appeal. Reversed.
Miller & Read, for appellants.
John Osborne and R. F. Dunlap, for appellee.
Robert D. Shanklin left the following will: "July the twelveth 1899. I, Robert D. Shanklin, of the county of Monroe, State of West Va., being aware of the uncertainty, and in failing health but of sound mind and memory, do make and declare this to be my last will and testament in manners as follows to-wit: First, I give to my two step-daughters, Austin Whitten's wife, Avaline, five hundred dollars. I also give Delila Houchins, Allen Houchins' wife, five hundred dollars; my son, Riley C. Shanklin, that is dead, I gave all the brick house place part be sold the deed is recorded in the office in hinton; I thought that was his full part of my estate, but I will will his heirs fifty dollars more. I will to my daughter, Mary Wiseman, all the place she now lives on to Mary her lifetime, then go to her daughter Ella Shanklin, and her husband, Burton Shanklin, at Mary's death. I also leave to Lee Wiseman ten dollars. I also will all my home place all to be sold, after paying all my debts, the balance to go to Lo My daghter, Ella Spicer except five hundred dollars to Mary Wiseman and her heirs at my daughter's death. I also will to my four grandchildren that lives with Washington Mottesherd, their father, in Greenbryar county, W. Va., one hundred dollars apiece, making four hundred dollars. My home place when sold is to pay that five hundred dollars to Mary Wiseman, and four hundred--to my four grandchildren out of my home place. I also request my administrator to sell my personal property and give a credit for it. I also appoint George H. Vawter my administrator. Robert D. Shanklin. [ [Seal.]" C. E. Lynch, administrator c. t. a., filed a bill to construe it. The bill states that the personalty is not sufficient to pay the legacies to Avaline Whitten, Delilah Houchins, and the heirs of Riley Shanklin. An answer says the farm was sold at $2,850 under the will, and that the personalty amounted to $186. The decree in the case excluded Avaline Whitten and Delilah Houchins from any interest in the proceeds of the sale of the home place, and gave out of such proceeds to the plaintiff's attorneys, for their services, $200, and Avaline Whitten and Delilah Houchins appeal.
The question is whether they are to be paid their legacies out of the land, or whether Ella Spicer gets its proceeds free of those legacies. It is the word "balance" that has strong import. It means after excluding what has been before given. It is a residuary clause. The word "balance" operates as a residuary clause. Page on Wills, § 506. Any word importing residue so operates. Schouler on Wills, § 522; 2 Lomax, Ex'rs, c. 5, § 2, p. 305; 18 Am. & Eng. Encyc L. 723. Therefore, taken alone, this word imports that Ella Spicer gets only what is left after legacies already given and debts. True, realty is not chargeable with pecuniary legacies unless the intent appears (Thomas v. Rector, 23 W.Va. 26); but it does appear from the word "balance." Where it is manifest that the intent was that the legacies are to be paid at all events, the implication is that the residuary devisee or legatee shall only have the remainder after satisfaction of the previous legacies. Bird v. Stout, 40 W.Va. 43, 20 S.E. 852; Thomas v. Rector, 23 W.Va. 26. Surely the testator intended that the two legacies to Avaline Whitten and Delilah Houchins, and the $50 to heirs of Riley Shanklin, should be paid. There is nothing to pay them except the home farm, and after giving these legacies he says the "balance" of it shall go to Ella Spicer. To what can the word "balance" relate but to those antecedent legacies? I do not suppose that it means balance after excluding debts alone. It cannot mean that in order to get at its meaning we shall go forward, and, finding legacies given afterwards to Mary Wiseman and the four grandchildren, say that the word "balance" means the balance after paying debts and these latter legacies; because, when he used that word "balance," his mind had not yet come to them, but it had dealt with the legacies to Avaline Whitten and Delilah Houchins. Here we must not forget to weigh the word "except." He gives Ella Spicer the "balance" of the money from the home farm, "except" $500 to Mary Wiseman and $400 to the grandchildren; that is, he excepts from the "balance" these latter legacies; that is, after paying preceding legacies, he gives the balance to Ella Spicer, except the $900; he makes an exception from the "balance"; in short, he gives Ella the net residuum after all these legacies. This gives these words "balance" and "except," each in its proper location in the will, its proper force, and carries out what we must say was the real purpose of the testator; that is, that all these legacies be paid out of the home farm, and Ella Spicer get the balance. True, where legacies are given they are, in general, not a charge on realty; but if the testator had in mind the land for their payment, if his intent was that the land should pay them, they are payable out of it. Hogg v. Browning, 47 W.Va. 22, 34 S.E. 754. In this case the word "balance" tells of intent that antecedent legacies shall be paid out of the land, and the word "except" tells of intent that the subsequent legacies shall be payable...
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