Neal v. Hamilton Co.
| Decision Date | 30 January 1912 |
| Citation | 73 S.E. 971,70 W.Va. 250 |
| Parties | NEAL v. HAMILTON CO. et al. |
| Court | West Virginia Supreme Court |
Submitted March 8, 1911.
Rehearing Denied March 12, 1912.
Syllabus by the Court.
In construing wills, words will not be interpolated, except when necessary to effectuate the manifest intention of the testator. Inference or conjecture is no justification; nor is the probability that if testator's attention had been called to a particular event he would have provided against it, justification for interpreting words to give the will that effect. The intent must be gathered from the will taken in all its parts, giving every word and expression its due weight and effect, if not inconsistent with the whole will when taken together.
Supplying technical words is only permissible when the intention to be aided thereby is apparent beyond reasonable doubt, the purpose being to develop a defectively expressed intent. If from the words employed the testator's intent can not be gathered, words can not be supplied to disclose that intent, for it may not have been his intent.
It is only where the will affords no satisfactory clue to the real intention of the testator, that resort may be had to legal presumptions and rules of construction, and then such rules must yield to the apparent intention of the testator expressed in his will, for the true inquiry is not what the testator meant to express, but what the words he used do express.
After the death of his wife, the life tenant, testator devised to his two sons, James and John, his farm to be equally divided between them; but in a subsequent paragraph provided that "in case of the death of either of my sons above named I will and bequeath that the remaining son living shall have and hold in his own right the whole of the above named bounded two tracts of land."
According to the plain intent, the words "in case of" should be construed to mean "at" or "upon"; and the whole phrase "in case of the death of" as referring to an event to occur subsequently to the death of the testator.
The will expressly limiting the estate devised to James and John to the survivor, they did not, on the death of the testator by virtue of section 8, chapter 71, Code 1906, severally take fee simple estates in the land devised; nor by virtue of section 18 of said chapter, as tenants in common; but a joint remainder in fee simple, subject to the right of survivorship, with only the rights and subject to all the limitations attaching to estates in joint tenancy, as at common law.
Appeal from Circuit Court, Roane County.
Bill in equity by Oscar L. Neal against the Hamilton Company and others. From the decree, the Hamilton Company and another appeal. Reversed, and bill and cross-bill dismissed.
Van Winkle & Ambler, Payne & Payne, Berkeley Minor, Jr., and Benjamin Trapnell, for appellant Hamilton Co. Pendleton & Pendleton, for appellant Neal. Linn & Byrne, for appellees.
S. P. Bell, Geo. F. Cunningham, and Linn & Byrne, for appellee Neal. Harper & Baker, for appellees Goff and Heck.
Oscar L. Neal, infant son of James L. Neal, and grandson of E. N. Neal, both deceased, plaintiff, and Lee Goff and A. S. Heck, defendants, and cross bill plaintiffs, and alleged purchasers of a part of the alleged one half interest of said infant in all the oil, and all the interest of said infant in all the gas in and under a tract of one hundred and thirty acres of land, in Roane County, have sued the Hamilton Company, the owners of a lease of said land for oil and gas, and the lessors Adaline Heal, widow, and John Z. Neal, son, and devisees under the will of said E. N. Neal, deceased, seeking to set aside and cancel said lease, and to remove the same as a cloud upon their titles; and an accounting of the oil and gas produced; and praying also for a receiver pending the suit, and for general relief.
The rights of the parties, it is conceded, depend wholly upon the proper construction to be given the will of said E. N. Neal, deceased.
The will, every part of which is important in arriving at the real intent of the testator, is as follows:
wife Adaline the sole use and occupation of my farm on which I now live together with all the horses, cattle, sheep, farming utensils, household and kitchen furniture and all other personal estate not herein enumerated during her natural life time after the payment of all my just debts.
The facts and circumstances surrounding a testator when making his will are often important in interpreting the language employed, perhaps never more than in this case. Counsel, therefore, have stipulated, substantially, as follows:
First, that Neal, the testator, was a farmer, and died, testate, November 18, 1881, leaving surviving him, Adaline Neal, his widow, a married daughter, Sarah A. C. Daugherty, five unmarried daughters, and two unmarried sons, James L. and John Z. Neal. Second, that the testator, his wife, his unmarried daughters and his two sons, were at the time of the execution of the will, at the time of the testator's death, and for a long time prior thereto, had been living together on the farm. Third, that James L. Neal was born August 20, 1866, and John Z. Neal, August 19, 1880; that at the time of the execution of the will, and the date of the death of the testator, he owned no other lands, and that there had been no prospecting or drilling for oil or gas, and none had been discovered on or near his farm, and none known to exist within at least twenty five miles thereof. Fourth, that the testator had been sick for some time prior to the execution of his will, and was then dangerously ill, and fully informed by attending physicians that he could not get well; that his death was only a question of a few days at best, and that he then fully understood and realized that fact. Fifth, that after the death of the testator his son James L. married Chloe F. Daugherty, by whom he had one child, the plaintiff Oscar L. Neal, born October --, 1894, and that he died intestate, in 1899, leaving his widow and his said son, his only heir, surviving him; and that he had in no way attempted to dispose of any supposed interest in the land involved in this suit. Sixth, that the widow, Adaline Neal, and the said John Z. Neal, both of whom survived said James L. Neal, are still living.
On the pleadings and these facts, the court below in the decree appealed from, was of opinion and so decreed, that upon the death of the testator his sons James L. and John Z. Neal took by the will a defeasible estate in fee simple in said farm, subject to the life estate of the widow; and that the defendant John Z. Neal could have become the owner of the whole farm described, "only upon the contingency of the said James L. Neal dying before him without issue." And that the plaintiff Oscar L. Neal, as the heir of his father, James L. Neal, is entitled to the undivided one half interest and estate in said land, and to a like undivided interest in and to all the oil, gas and other minerals thereunder, subject to the life estate of his grandmother, Adaline Neal.
It is conceded, that to give the will this construction, it is necessary, as the court did, to interpolate in the sixth paragraph, after the words, "in case of the death of either of my sons above named," the words "without issue." In the light of the language of the testator in the several paragraphs of his will, and of the stipulated facts, was the court justified in so interpolating these words? Both sides agree that if these words were necessary to effectuate the manifest purpose and intent of the testator, the court was justified in reading them into the will. We emphasize the words "manifest purpose and intent of the testator."
Able and elaborate briefs have been submitted by the numerous counsel engaged on both sides of this controversy. If the old farmer, who made and executed this will could have survived the present controversy, he would certainly have been greatly surprised that so much could be...
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