Mauzy v. Nelson

• Decision Date: 18 June 1963
• Docket Number: No. 12191,12191
• Citation: 131 S.E.2d 389,147 W.Va. 764,97 A.L.R.2d 732
• Court: West Virginia Supreme Court
• Parties: , 97 A.L.R.2d 732 Buanna MAUZY et al. v. Alma NELSON et al.

Page 389

131 S.E.2d 389

147 W.Va. 764, 97 A.L.R.2d 732

Buanna MAUZY et al. v. Alma NELSON et al.

No. 12191.

Supreme Court of Appeals of West Virginia.

Submitted May 14, 1963.

Decided June 18, 1963.

Syllabus by the Court

1. An owner of an undivided interest in real property can not devise a particular item or plot, or his interest in a particular item or plot, out of the entire property so held.

2. The intention of the testator must be given effect in the construction of his will, unless that intention violates some positive rule of law.

3. The sole purpose of the proceedings permitted under the provisions of Code, 41-5-11, is the determination of the validity of a challenged instrument purporting to be a will. Neither the construction of a will nor the validity of a bequest therein can be inquired into in a suit instituted under that statute.

4. Where an answer of an undivided interest in real property purportedly devises a specific portion of that property, the mere failure to object to such devise does not preclude the co-owner from asserting his rights and unless he has acquiesced in one way or another there can be no basis for an estoppel in pais.

William McCoy, Sr., William McCoy, Jr., Franklin, for appellants.

George I. Sponaugle, Franklin, for appellees.

CAPLAN, Judge.

This is a civil action instituted in the Circuit Court of Pendleton County, wherein the plaintiffs Buanna Mauzy and J. K. Mauzy, her husband, and Myrtle Welch and Joseph H. Welch, her husband, seek the partition of certain real property situate in Union District in said county. The parties hereto are the children and, in some instances, spouses of said children, of Jonathan S. Nelson and Maude W. Nelson. From an order of the circuit court denying plaintiffs the relief prayed for this Court, upon petition, granted an appeal and supersedeas.

Jonathan S. Nelson and Maude W. Nelson, his wife, each owned a one-half undivided interest in a farm which consisted of two tracts of land, one containing one hundred eighty-eight and one-half acres and the other six and one-half acres, and upon which is situate their home place. In this opinion this property will be referred to as a single tract of land.

On March 19, 1944, Jonathan S. Nelson, hereinafter sometimes called testator, died testate and by his will bequeathed twelve hundred dollars to his daughter Alma Nelson, and devised and bequeathed all the remainder of his belongings, both real and personal, to his eight children, Mrs. Madie (Nelson) Allen, Mrs. Estie (Nelson) Nelson, Mrs. Eva (Nelson) Smith, Mrs. Buanna (Nelson) Mauzy, Miss Alma Nelson (single), Mrs. Mertie (Nelson) Thompson, Mrs. Marjorie (Nelson) Bland, and Arlie Nelson. By a codicil to his will, dated August 2, 1943, the testator devised to his daughter Alma, one of the defendants herein, the house and twenty acres around said house. The pertinent portion of the codicil is in the following words: '1st. In addition to the ($1200) Twelve hundred Dollars and the equal share of all my real and personal property I will to my daughter Miss Alma Nelson the dwelling house and twenty (20A) acres of land around the said house. The line shall be run as my daughter Miss Alma Nelson so desires.'

Subsequently, in 1956, Maude W. Nelson died intestate and her one-half undivided interest in said property descended to her remaining seven children, Maude (Madie) Nelson Allen, a daughter, having died without issue in 1952. Alma Nelson, who had remained on the farm and had taken care of her father and mother, continued to reside and still resides at the home place, together with her invalid brother, Arlie.

In the complaint filed in this proceeding the plaintiffs allege that Jonathan S. Nelson had devised all of his real estate to his eight children; that by reason of the intestacy of their mother, Maude W. Nelson, the remaining one-half interest in said real property descended to the remaining seven children, making them tenants in common in the whole tract; that the land can not be partitioned equitably among such co-owners; and that it would be in the best interest of each of said owners to sell the real estate and divide the proceeds from the sale among the parties according to their rights. One of the principal allegations upon which the plaintiffs rely is that the codicil, quoted in part above, is void and incapable of taking effect. It is therein claimed that the codicil is void because of its uncertainty and for the further reason that the testator owned only a one-half undivided interest in the property he attempted to devise to his daughter Alma Nelson.

The defendant Alma Nelson filed an answer to the complaint and a counterclaim. Therein she denies that the codicil is void and affirmatively asserts that the dwelling house and twenty acres of land around said house were devised to her by her father. She further asserts that the balance of the real estate, after the twenty acres have been run off, can not be conveniently divided and that such balance should therefore be sold and the proceeds divided among the parties according to their respective interests. It is evident from the prayer in her counterclaim that by reason of the codicil to her father's will she claims a one-half undivided interest in the dwelling house and the twenty acres.

A further defense to this action was raised in the answer of Marjorie Bland, one of the defendants herein. In addition to denying that the codicil to the will of Jonathan S. Nelson is void, she affirmatively asserts that the 'codicil is legal and binding on all parties for the reason that it's certain or could be made certain and for the further reason that more than one year has elapsed since the will of the said Jonathan S. Nelson was duly probated; and thus according to the laws of the State of West Virginia, no contest can be made thereon; * * *.' It is evident from the brief of appellees that the state law to which reference is made is Code, 41-5-11.

The trial court heard this case upon the pleadings and upon arguments of counsel for the parties. On May 2, 1962, that court entered an order finding 'that the Will and Codicil attached thereto of the said Jonathan Nelson is legal and valid in all respects and doth further construe the Will and Codicil to mean that Alma Nelson shall have a 1/2 undivided interest in the house and 20 acres around the dwelling house * * *.' That order further gave Alma Nelson a one-seventh interest in the remaining farm lands, 'including an undivided 1/7 interest in the other half of the 20 acres and the dwelling house.' Commissioners were appointed to run off and set aside twenty acres around the dwelling house and were directed to place a fair market value on that specific portion of the farm. Alma Nelson was thereby given the privilege of purchasing the other one-half undivided interest in the house and twenty acres so specified.

In deciding this case we must first consider the legal effect of the first paragraph of the codicil to the will of Jonathan S. Nelson. It is noted that in addition to an equal share in all of his real property he therein wills to his daughter, Alma Nelson, the dwelling house and twenty acres around the house, to be determined as she shall designate. The testator was the owner of a one-half undivided interest in the whole one hundred ninety-five acre tract. Owning such interest, could he make a devise of a particular portion of the tract? This must be answered in the negative.

Although one holding an interest in property can bequeath or devise that interest, it is well established that he can not devise a particular item...