McCauley v. Henry

• Decision Date: 07 October 1958
• Docket Number: No. 10967,10967
• Citation: 105 S.E.2d 129,143 W.Va. 770
• Parties: Maysell McCAULEY et al. v. Gail HENRY et al.
• Court: West Virginia Supreme Court

Page 129

105 S.E.2d 129

143 W.Va. 770

Maysell McCAULEY et al. v. Gail HENRY et al.

No. 10967.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 9, 1958.

Decided Oct. 7, 1958.

Syllabus by the Court

1. Under the provisions of the first sentence of Chapter 41, Article 1, Section 10, of the 1931 Code, the legal effect of wills executed prior to January 1, 1931, must be determined by the laws of this State which were in force at the time of the execution of such wills, irrespective of whether the testator died before or after January 1, 1931.

2. The provisions of Chapter 41, Article 3, Section 1, of the 1931 Code relating to the construction of wills establish a rule for the ascertainment of the intention of a testator. However, when the expressed intention of a testator is ascertained, the legal effect thereof in a will executed prior to January 1, 1931, must be determined by the laws of this State which were in force at the time of the execution of the will.

3. The common law rule that where an estate is given by will to one in general terms and there is a subsequent limitation over of what remains at the first taker's death, if there is also given to the first taker an unlimited power of absolute disposal, express or implied, the devise or bequest to the first taker is construed to pass a fee, and the limitation over is invalid, was the law of this State prior to January 1, 1931.

4. Where an estate is given by will to one in general terms and there is a limitation over of what remains at the first taker's death, an absolute power of disposal is implied from the words 'If there be any thing left after the death' of the first taker.

5. In a will executed prior to January 1, 1931, the testatrix devised and bequeathed to her husband all her property whatsoever it may be or wherever it may be found; and further provided that 'If there be any thing left after the death of my husband David F. Henry, I want it to go to my Nipheu, Gail Henry.' The legal effect of the will was to vest a fee simple estate in the husband and the limitation over to the nephew is invalid.

Herbert M. Blair, Weston, for appellants.

Linn Mapel Brannon Weston, for appellees.

DONLEY, Judge.

There is no dispute about the facts in this case. It involves the construction and legal effect of the will of Venie Henry, which is as follows:

'Last Will of Venie Henry----

'1--I Venie Henry being in sound mind and disposing memory do make this my last Will and Testament.

'I will and Bequeath to my dear husband David F. Henry, all my property whatsoever it may be, or where ever it may be found.

'2--I will and Bequeath to my husband David F. Henry, all my interest in Coal, Oil, and gas, in or under a certain track of Land in Sassafras creek in The County of Lewis known as The W. H. Nay farm. It is my desire that my husband David F. Henry, may be the Beneficiary of my money I may-have after all my Debts and Funeral expenses have been paid.

'If there be any thing left after the death of my husband David F. Henry, I want it to go to my Nipheu, Gail Henry.

'April 2-1928

'Mayme T. Arthur Polly Dodson

'Venie Henry (Seal)'

Venie Henry died on December 3, 1933. Her husband, David F. Henry, took possession of the property so devised by his wife's will. The real estate, which is the subject matter of the controversy, consists of a certain lot or parcel of land situate in that section of the City of Weston, locally known as 'Kitsonville', in Court House District, in Lewis County, West Virginia, fronting for fifty feet on the west side of what is now known as South Main Avenue, adjoining on the south the H. L. Spaur property (now owned by James W. Flesher), and extending back therefrom with that width in a westerly direction to the right of way of The Baltimore and Ohio Railroad Company at the rear. Upon the death of his wife, David F. Henry entered into sole and exclusive possession of the 'Kitsonville' property, and exercised complete ownership, control and domination over the same, and collected, received, appropriated and used, as his own, the rents, issues and profits therefrom until his death. During the lifetime of David F. Henry, he entered into an agreement or deed with one of the plaintiffs, Maysell McCauley, dated January 7, 1947, whereby they established a right of way to have and maintain a driveway ten feet in width, with the property line between said parties as the center thereof, extending from South Main Avenue in a westerly direction to the right of way of The Baltimore and Ohio Railroad Company, the southern half of said driveway lying along and just inside the northern boundary of the lot known as the 'Kitsonville' property.

Thereafter David F. Henry died on May 28, 1956, and by his last will and testament devised and bequeathed all his estate, real and personal, unto his nephew, Gail Henry, his niece, Sarah B. Squires, and Maysell McCauley, to be divided among the three, share and share alike, in fee simple and absolutely.

The bill of complaint was filed by the plaintiffs, Maysell McCauley and Sarah B. Squires, against Gail Henry, Edna Henry, his wife, and Roy Squires, the husband of said Sarah B. Squires. It is alleged, and it is the contention of the plaintiffs here, that under the provisions of the will of Venie Henry, her husband, David F. Henry, became vested with a fee simple estate in the 'Kitsonville' property of which Venie Henry died seised, and if so, the will of David F. Henry vests the title thereto in Gail Henry, Sarah B. Squires and Maysell McCauley, each becoming vested with an undivided one-third interest therein. The bill further alleges that the property is not susceptible of partition in kind, and the plaintiffs seek a decree for a judicial sale thereof and division of the proceeds, subject to the right of way previously mentioned.

The defendant, Gail Henry, filed his separate answer to the bill of complaint, admitting the allegations of fact therein contained, but denying that the legal effect of the Venie Henry will was to vest in David F. Henry a fee simple title to the 'Kitsonville' property, and taking the position that under the provisions of Code, Chapter 36, Article 1, Section 16, the limitation over vested title in him, Gail Henry, and that no disposition of the 'Kitsonville' property having been made during the lifetime of the said David F. Henry, his estate therein expired upon his death.

The plaintiff filed an amended and supplemental bill of complaint to bring into the case the property described in the Venie Henry will as 'all my interest in Coal, Oil, and gas, in or under a cetain track of Land in Sassafras creek in The County of Lewis known as The W. H. Nay farm.'

The defendant, Gail Henry, filed his separate answer to this pleading, admitting the allegations of fact therein contained, but again taking the same position with reference to the 'Nay' property that he had taken with reference to the 'Kitsonville' property.

The case was submitted to the trial court upon the pleadings. The court held that the plaintiffs were not entitled to the relief sought by them, dismissed the original and the amended and supplemental bills of complaint, and decreed that the title of Gail Henry to said real estate be quieted and confirmed in him.

Maysell McCauley and Sarah B. Squires now appeal from that final decree.

Until shortly before the argument of the case in this Court, apparently neither counsel for the plaintiffs nor counsel for the defendant was aware of the provision of the 1931 Code, Chapter 41, Article 1, Section 10, which provides as follows:

'The validity and effect of wills executed prior to the time this Code becomes effective shall be determined by the laws of this State in force at the time of their execution. Every will reexecuted, or republished, or revived by any codicil, shall, for the purposes of this chapter, be deemed to have been made at the time at which the same shall be so reexecuted, republished, or revived.'

The Revisers' note to this section states:

'Section 21, c. 77, Code 1923, provided that the preceding sections of that chapter should not extend to wills made prior to July 1, 1850, and that the validity and effect of such wills should be determined by the laws in force prior to that day. As rewritten this section protects not only wills made prior to July 1, 1850, but any will in existence at the time this revised Code becomes effective, against any changes in the law that are made herein.' (Italics supplied.)

The defendant contends that the statute governs merely the law concerning the formalities of the execution and attestation of wills to the extent that the requirements for probate must conform to the provisions of the statute which were in effect at the time when the will was written. In support of this contention, the defendant relies upon Barker v. Hinton, 62 W.Va. 639, 59 S.E. 614. Syllabus 1 of that case states:

'The change in section 3135 (section 3, c. 77) Code 1906, made by Chapter 84, p. 194, Acts Leg.1882, making the additional requirement that witnesses subscribing a will should do so 'in the presence of each other,' applies only to wills executed, or re-executed or republished, or revived subsequent to the date of said act.'

It is readily apparent that this case constitutes no authority for limiting the broad scope of the provisions of the 1931 Code, Chapter 41, Article 1, Section 10, above quoted. It will be observed that the statute provides that both the validity and the effect of wills executed prior to the time when the 1931 Code became effective on January 1, 1931, shall be determined by the laws of this State in force at the time of their execution. If the Legislature had intended that this provision should relate merely to the manner of the attestation and execution of wills, that result could have been reached by the use of the word 'validity' alone. However, by the use of the word 'effect', the Legislature obviously intended...