Nat'l Bank Of Fairmont v. Kenney.

• Court: West Virginia Supreme Court
• Writing for the Court: KENNA.
• Citation: Nat'l Bank Of Fairmont v. Kenney., 170 S.E. 177, 113 W.Va. 890 (W. Va. 1933)
• Decision Date: 06 June 1933
• Docket Number: (No. 7484)
• Parties: National Bank of Fairmont v. Dan Kenney et al.

113 W.Va. 890

National Bank of Fairmont

v.Dan Kenney et al.

(No. 7484)

Supreme Court of Appeals of West Virginia.

Submitted May 10, 1933.

Decided June 6, 1933.

(Rehearing denied August 1, 1933)

Wills

Words of survivorship contained in a will are not necessarily to be applied as of the date of the death of the testator, but are to be applied in accord with the intention of the testator as gathered from a consideration of the entire will.

Litz, Judge, absent.

Appeal from Circuit Court, Marion County.

Bill in equity by the National Bank of Fairmont, as administrator of the will of Ella Horan, deceased, against Dan Kenney and others. From the decree, Dan Kenney and others appeal.

Reversed and remanded.

M. M. Neely and Harry E. Watkins, for appellants Joseph S. Connally and others.

Chas. L. Estep, for appellants Dan Kenney and others. A. F. McCue, for appellee C. Brooks Deveny.

Kenna, Judge:

The National Bank of Fairmont, as administrator, etc., of the will of Ella Horan, filed a bill in equity under section 7, article 3, chapter 41 of the Official Code of 1931, in the circuit court of Marion county seeking a construction of the testatrix' will. After providing a life estate for her husband, Lawrence Horan, who died before she did, the will disposes of the entire estate by placing it in trust, for certain purposes, and then proceeds to make disposition of the corpus under the following provisions:

"3. Should my husband, Lawrence Horan, survive me, I desire that he shall have the use of all my property so long as he may live, and after his death, the said property to be disposed of as follows:

"4. Subject to the above provision (3), and to the conditions hereinafter stated, I give, devise and bequeath to my said Executor, Lawrence J. Horan, all my property, real and personal, in trust for the following purposes only, and not otherwise:

"(a) My Executor shall manage the estate as best he can, keeping the building insured against loss of fire, and in good repair, at the expense of the income derived from said estate, and shall collect the rents and profits monthly in advance, and all leases on said property must be in writing; but he shall not sell any of said real estate.

" (b) Out of the income derived from said estate, my son, Charles L. Horan, must first be supported and maintained in some good Institution, preferring that in which he now is, at a cost of at least fifty dollars per month, but not more than one hundred dollars per month; and out of the remainder of said income, my son Lawrence may have for his own use the whole of said remainder, unless such remainder be more than is expended from month to month for Charles; in which latter event, Lawrence shall receive no more for his own use than an amount equal to that expended for Charles, and the residue above said amount shall be added to the principal of the personal estate.

'"(c) Sub-section (b) above, is subject to the condition that if my son Charles should be restored to his normal condition at any time, then during the time such normal condition, continues, the income from all said real and personal estate shall be divided equally between my said two sons.

"5. Should either of my said two sons die without leaving lawful issue, the share of the one so dying shall go to the other; but if one of my said two sons die leaving lawful issue, the share of the income of the one so dying shall go to his said issue during the life of my surviving son; and after the death of the son so surviving, if both shall have left issue surviving at that time then all said estate shall be divided into two equal parts, one of which equal parts shall go to the issue of Charles, and the other to the issue of Lawrence J. Horan; but if only one of my two sons should leave issue surviving after the death of both my sons, then all said property shall go to such issue; and should both my two sons die without either of them leaving issue surviving both; in that event, all said property shall be disposed of as follows:

" (a) One thousand dollars shall go to the Rector of St, Peters Catholic Church, Fairmont, West Va., for the benefit of said St. Peters Church;

"(b) One thousand dollars shall go to the Bishop of Wheeling Catholic Diocese for the. benefit of the Home for the Aged Poor of said Diocese;

" (c) Three thousand dollars shall go to the said Bishop of Wheeling for the benefit of the Wheeling Hospital and Orphan Asylum of Wheeling Catholic Diocese;

" (d) The residue of said property shall go to my heirs.''

The contested question hinges upon the construction of subparagraph (d) of paragraph 5 of the provisions above quoted. The question involved is whether the expression "my heirs", used by the testatrix, speaks as of the date of her death or as of the date of the death of her last surviving son, both of whom died without issue. The trial court found that the provision in question was to be applied as of the date of the testatrix' death and that consequently the estate passed under the will of the last surviving son and vested in the appellee, Deveny. The appellants are those in whom the estate would vest if the provisions in question were made to speak as of the date of the death of the last surviving son.

Appellants contend that according to the plain meaning to be gathered from the will itself, the testatrix had in mind that the expression "my heirs" should be ascertained if and when both of her sons had died without issue and at the time of the death of the last surviving son so dying. The appellees say that this is not the true construction of the will; that the will must be considered as having been drawn in the light of "the well-established" cases governing the question; that these cases are based primarily upon the settled principle that the law favors the vesting of estates and that from that...