Painter v. Coleman, 30255.

• Decision Date: 07 June 2002
• Docket Number: No. 30255.,30255.
• Citation: 566 S.E.2d 588,211 W.Va. 451
• Parties: Robert F. PAINTER, Executor of the Last Will and Testament of Curtis Jackson Coleman, Plaintiff Below, Appellee v. Malcolm J. COLEMAN, Claude East, Jr., and B.C. Wilkerson, Jr., Defendants Below, Appellants Hilda M. Allen, Onetta L. Shorter, Geneva M. Pederson, Kim M. Jacobs, Michael McPhillips and Patrick McPhillips, Defendants Below, Appellees Hilda M. Allen and O'Neta Shorter, Third-Party Plaintiffs Below, Appellees, v. Robert F. Painter, individually, Third-Party Defendant Below, Appellee
• Court: West Virginia Supreme Court

566 S.E.2d 588

211 W.Va. 451

Robert F. PAINTER, Executor of the Last Will and Testament of Curtis Jackson Coleman, Plaintiff Below, Appellee v. Malcolm J. COLEMAN, Claude East, Jr., and B.C. Wilkerson, Jr., Defendants Below, Appellants Hilda M. Allen, Onetta L. Shorter, Geneva M. Pederson, Kim M. Jacobs, Michael McPhillips and Patrick McPhillips, Defendants Below, Appellees Hilda M. Allen and O'Neta Shorter, Third-Party Plaintiffs Below, Appellees, v. Robert F. Painter, individually, Third-Party Defendant Below, Appellee

No. 30255.

Supreme Court of Appeals of West Virginia.

Submitted May 22, 2002.

Decided June 7, 2002.

Thomas K. Fast, Fast Law Office, Fayetteville, for Appellants.

Paul O. Clay, Jr., Fayetteville, for Appellee, Robert F. Painter, Executor.

D. Clinton Gallaher, IV, Fayetteville, for Appellees, Hilda M. Allen and O'Neta L. Shorter.

Philip J. Tissue, Oak Hill, for Appellee, Robert F. Painter, individually. ALBRIGHT, Justice:

The Appellants, Malcolm J. Coleman, Claude East, Jr., and B.C. Wilkerson, Jr., appeal from an adverse order entered by the Circuit Court of Fayette County on June 5, 2001, which held that Appellees Hilda M. Allen and O'Neta L. Shorter (hereinafter referred to as "Appellees" or the "nieces") were beneficiaries under the will of Curtis J. Coleman and, therefore, entitled to distribution of his estate under the terms of the will. Appellants, who would benefit through intestate succession, argue that the will of Mr. Coleman failed to properly devise the estate and accordingly, the laws of intestacy should control. Upon our review of this matter, we find no error and, accordingly, affirm.

I. Factual and Procedural Background

On October 1, 1963, Mr. Coleman and his wife, Juanita, executed separate, reciprocal wills that were both prepared by attorney C.R. Hill, Jr. The wills provided that if either spouse predeceased the other, the living spouse would inherit everything and further provided that if both of the Colemans died simultaneously, Appellees, who are nieces¹ of the Colemans, would inherit the estate that remained upon payment of the estate's expenses. Following Mrs. Coleman's death on November 6, 1994, all of her estate was transferred to her husband pursuant to the terms of her will.

Mr. Coleman visited Mr. Robert F. Painter, his certified public accountant, on November 21, 1994, for the purpose of changing his will. While there is some dispute as to whether Mr. Coleman or Mr. Painter directed Mr. Painter's secretary to type the will, a new will was prepared and executed in Mr. Painter's office on that date. Appellants take the position that the only substantive change made to the new will, when compared to Mr. Coleman's 1963 will,² was the substitution of a new executor—Mr. Painter instead of Mr. Coleman's sister-in-law. In actuality, there were multiple changes made to the new will: (1) the paragraph bequeathing Mr. Coleman's estate to Mrs. Coleman in the event of his death was deleted; (2) the nieces' names were altered to reflect their married surnames and their new places of residence; (3) an additional bequest of Mr. Coleman's 1994 Oldsmobile was made to Hilda M. Allen; and (4) Mr. Painter was appointed executor of the will in the event Mrs. Coleman could not serve in such capacity. The new will was properly executed and witnessed.

On November 12, 1995, Mr. Coleman died without issue. As executor of the will,³ Mr. Painter filed an appraisement of the estate valuing it at $555,254.80. Before seeking advice of counsel, Mr. Painter distributed $200,000 to the two nieces. On November 25, 1996, Mr. Painter filed a civil action in the circuit court through which he sought a declaratory judgment⁴ regarding distribution of the estate based on the absence of a standard residuary clause and the apparent failure of the will to make a valid devise or bequest given the Colemans' non-simultaneous deaths.

After several years of inactivity,⁵ the lower court held a status conference on March 16, 2001, at which time it acknowledged the pendency of various motions for summary judgment. Rather than ruling on those motions, however, the lower court instead declared, as a matter of law, that the 1994 will of Mr. Coleman, on its face, evidenced a clear intent that Appellees were to inherit under the will, "equally, share and share alike, in fee simple and absolutely." Appellants appeal from this order of the lower court, which directs Mr. Painter to distribute the estate of Mr. Coleman to Appellees.

II. Standard of Review

Since the lower court's ruling was a declaratory judgment regarding the construction of the will, our review is governed by this Court's holding in syllabus point three of Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995): "A circuit court's entry of a declaratory judgment is reviewed de novo." We proceed to review this matter to determine whether the lower court erred in its ruling regarding Mr. Coleman's 1994 will.

III. Discussion

Decisions involving construction of wills always begin with recognition of the following axiom: "The paramount principle in construing or giving effect to a will is that the intention of the testator prevails, unless it is contrary to some positive rule of law or principle of public policy." Syl. Pt. 1, Farmers and Merchants Bank v. Farmers and Merchants Bank, 158 W.Va. 1012, 216 S.E.2d 769 (1975); accord Syl. Pt. 4, Weiss v. Soto, 142 W.Va. 783, 98 S.E.2d 727 (1957); In re Conley, 122 W.Va. 559, 561,12 S.E.2d 49, 50 (1940). In Hobbs v. Brenneman, 94 W.Va. 320, 118 S.E. 546 (1923), we described the role of the judiciary in ascertaining the intention of the testator:

When the intention is ascertained from an examination of all its parts the problem is solved. The interpretation of a will is simply a judicial determination of what the testator intended; and the rules of interpretation and construction for that purpose formulated by the courts in the evolution of jurisprudence through the centuries are founded on reason and practical experience. It is wise to follow them, bearing in mind always that the intention is the guiding star, and when that is clear from a study of the will in its entirety, any arbitrary rule, however ancient and sacrosanct, applicable to any of its parts, must yield to the clear intention.

Id. at 326, 118 S.E. at 549.

Appellants argue that because the Colemans did not die simultaneously and because the will lacked a standard residuary clause, the estate is subject to passing through the laws of intestacy. See W.Va. Code § 41-3-4 (1977) (Repl.Vol.1997) (stating that real or personal estate "in the absence of ... residuary devise or bequest[ ] shall pass as in case of intestacy"). Both this Court and others, however, have recognized that "[t]he law favors testacy over intestacy." Syl. Pt. 8, In re Estate of Teubert, 171 W.Va. 226, 298 S.E.2d 456 (1982); Powell v. Holland, 224 Va. 609, 299 S.E.2d 509 (1983) (recognizing that "[u]nlike the law in England, `[i]n America, the law does not favor intestacy; rather it favors the right of a donor to dispose of his property at death as he chooses, even if at the expense of his heirs at law'") (quoting Bauserman v. Digiulian, 224 Va. 414, 297 S.E.2d 671, 674 (1982)).

In making its declaration that the intent of Mr. Coleman was clear from the "`four corners'" of the will, the lower court was applying the following principle set forth in syllabus point seven of Weiss: "In construing a will the intention must be ascertained from the words used by the testator, considered in light of the language of the entire will and the circumstances surrounding the testator when he made his will." 142 W.Va. at 784,98 S.E.2d at 729. Among the circumstances surrounding the testator's making of the 1994 will considered by the lower court was the fact that Mr. Coleman executed this will just days after his wife had died. Given this fact, the circuit court recognized that Mr. Coleman was fully aware at the time he executed his second will that simultaneous deaths were a physical impossibility.

In making its ruling, the circuit court was appreciative of the fact that if the intent of Mr. Coleman was not to devise his estate to Appellees when he executed the 1994 will, then there was no purpose to be accomplished through the execution of that will. The lower court was also cognitive of the principle that "[w]here a will is made it is presumed that the testator intended to dispose of his whole estate, and such presumption should prevail unless the contrary shall plainly appear." Syl. Pt. 4, Rastle v. Gamsjager, 151 W.Va. 499, 153 S.E.2d 403 (1967).

While courts clearly prefer not to make additions to or deletions from the language of a will,

it is a well settled rule that effect must be given to every word of the will, if any sensible meaning can be assigned to it not inconsistent with the general intention of the whole will taken together. Words are not to be changed or rejected unless they manifestly conflict with the plain intention of the testator, or unless they are absurd, unintelligible or unmeaning, for want of any subject to which they can be applied.

Tiffany v. Thomas, 168 Va. 31, 190 S.E. 101, 103 (1937) (quoting Wootton v. Redd's Ex'r, 53 Va. 196, 12 Grat. (53 Va.) 196, 208 (1855) (emphasis supplied)). Under our state constitution, this decisional law of Virginia is clearly a part of this state's common law,⁶ because "at the time West Virginia was founded, we adopted the common law of England and the law of the State of Virginia, except for those portions specifically changed by our Legislature or Constitution."⁷ Boarman v. Boarman, 210 W.Va. 155, 159, n. 4, 556 S.E.2d 800, 804, n. 4 (2001); accord Syl. Pt. 3, Seagraves v. Legg, 147 W.Va. 331, 127 S.E.2d 605 (1962) (holding that "[t]he common law, if not repugnant of the Constitution of this State, continues as the law of this State unless it is altered or changed by the Legislature. Article VIII, Section 21 of the...