Rastle v. Gamsjager

• Decision Date: 14 March 1967
• Docket Number: No. 12595,12595
• Citation: 151 W.Va. 499,153 S.E.2d 403
• Court: West Virginia Supreme Court
• Parties: Ernest RASTLE et al. v. Frank W. GAMSJAGER et al.

Page 403

153 S.E.2d 403

151 W.Va. 499

Ernest RASTLE et al. v. Frank W. GAMSJAGER et al.

No. 12595.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 31, 1967.

Decided March 14, 1967.

Syllabus by the Court

1. 'If possible a will should be so interpreted as to avoid intestacy, and in such cases the context should control technical words, and not the words the context.' Pt. 3, syllabus, Cowherd v. Fleming et al., 84 W.Va. 227 (100 S.E. 84).

2. 'All the parts of a will are to be construed together, so as, if possible, to form one consistent whole.' Pt. 9, syllabus, Graham v. Graham, 23 W.Va. 36.

3. 'Wherever possible to bring into operation a testator's intention, a court will give such construction to a will as to bring into effect every word or part thereof and such construction will be made as to avoid the creation of an intestacy.' In Re Conley, 122 W.Va. 559, 562 (12 S.E.2d 49, 51).

4. Where 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.

5. 'In the construction of a will, a court should construe and consider all of the provisions of the will as a whole, in their relation to each other, and in the light of the circumstances which prompted testator to execute the will.' Pt. 2, syllabus, Ball v. Ball, 136 W.Va. 852 (69 S.E.2d 55).

John R. Haller, Linn Mapel Brannon, Weston, for appellants.

William L. Fury, Weston, for appellees.

BERRY, Judge:

This is an action to construe the will of John Rastle, Sr., instituted in the Circuit Court of Lewis County, by Ernest Rastle, May Rastle, Marie Riley, Everett Rastle, Margaret Rastle, Marie Lowther, Harvey Ruppert, Ed Ruppert, Wallace Ruppert, Roy M. Ruppert, Maybelle Ruppert, Gary Ruppert, Eula Ruppert, Jessie Dailey, Hazel Blacksten, and John Rastle, against Frank W. Gamsjager, Henry C. Gamsjager, John M. Gamsjager, Alma Gallien, Ida R. Moore, Margaret Sue Olsen, Mary McMahon, Nancy Oehrle, John F. Gamsjager, David B. Gamsjager, and Charles H. Gamsjager, Jr. The plaintiffs are descendants of three of the four children of the testator and the defendants are descendants of the fourth child of the testator. The object of the action is to determine the owners of the oil and gas interest on the Rastle farm on Fink's Creek in Lewis County, West Virginia. The Circuit Court entered a judgment in favor of the defendants on November 12, 1965, and upon application to this Court by the plaintiffs an appeal and supersedeas were granted on July 15, 1966. The case was submitted for decision on briefs of the parties at the January Regular Term, 1967, of this Court.

The will in question was dated June 25, 1903, was probated in the County Court of Lewis County in 1911, and in its entirety reads as follows:

'I, John Rastle, Sr., of Lewis County, West Virginia, do make this my last will and testament, as follows:

'(1) I desire that my body be buried in a manner consistent with my station in life.

'(2) My son, Frank Rastle, shall pay my funeral expenses and whatever debts I may owe at the time of my death.

'(3) I will and bequeath to my son, Frank Rastle, all the household and kitchen furniture, farm implements and tools of every kind, and stock that I may have upon the farm at the time of my death.

'(4) I, also, will and bequeath to my son Frank Rastle, the farm upon which I now live, on Fink's Creek in Lewis County, West Virginia, consisting of three small adjoining tracts, aggregating about one hundred and fifty acres of land, except the oil and gas and, also, the two seams of coal known as the Pittsburg and Freeport coal, the distribution of which I will hereinafter provide for.

'(5) I desire that my son John Rastle have the use of the house, garden and lot, now in potatoes, where he now lives, and also, pasture on the farm for one cow, so long as he works in the oil field and continues to occupy the same himself, but when he ceases to work in said oil field, then his rights thereto shall cease and the same shall go to Frank Rastle.

'(6) I, also, will and bequeath that my son, Frank Rastle, shall pay to my two daughters, Edeth and Catherine, and my son John, Five Hundred Dollars ($500.00) each at my death.

'(7) I desire that all my notes, bonds, bills, claims and accounts, be collected and, together with whatever money I may have on hand at the time of my death, be equally divided among my four children.

'(8) I desire that the two veins of coal known as the Pittsburg and Freeport seams, heretofore excepted in the devise of my land to my son Frank, shall be sold and the proceeds of said sale shall be divided equally among my four children, and if either of them be dead at the time said coal is sold, then, his or her interest shall go to his or her children; but before they can sell said coal a majority of them shall agree upon the terms and conditions of the sale thereof, and if there should be a tie among those living at the time, as to the said terms and conditions, then the oldest one living shall determine as to the sale thereof.

'(9) And I further will and bequeath to my two sons, John and Frank Rastle, one-third, each of the royalty in oil and gas which I own in the two farms in Gilmer county, one of 38 acres and owned by Jasper N. Lamb, and the other of 32 acres and owned by Margaret C. Taylor and Susan J. Lamb, but if either of them die, then said interest is to go to his wife, and the remaining one-third to be divided equally among all four of my children.

'(10) I desire that my interest in the oil and gas that may be produced from the lands herein before devised to my son Frank, after my death be divided equally among my four children, but should one or more of them die during the time of any production of oil or gas from said farm, then the interest of such as die shall cease and the production from that time on shall be divided among those surviving, and if any one or more of my children offer to sell the royalty therein bequeathed to them in said farm, it shall forfeit as to him or them and said interest shall pass to the others of my said children.

'(11) I hereby appoint my son Frank Rastle as my executor of this will and desire that no surety be required of him as such.

'Witness my hand, this 25th day of June, 1903.

JOHN RASTLE, SR.

'Signed and published by John Rastle, Sr., as and for his last will, in the presence of us, who in his presence and in the presence of each other, have hereunto subscribed our names as witnesses.

W. A. EDWARDS

J. B. MITCHELL'

No evidence was taken during the trial of this case and it was disposed of on the pleadings and exhibits. It appears that from the pleadings and the court's opinion, which is made a part of the record, there were producing oil and gas wells on the property in question at the time of the institution of the suit, as well as before.

At the time of the death of John Rastle, Sr., about 1911, the exact date not being indicated in the record, he had four children. The last survivor of these four children was Edeth Frances Gamsjager, who died June 26, 1961. The plaintiffs involved here are the heirs of the three children who predeceased the fourth child, Edeth Frances Gamsjager. The defendants are the heirs at law of Mrs. Gamsjager.

The issue involved is whether paragraph 10 of the will of John Rastle, Sr. gave to his four children the oil and gas in place on the 150 acre farm referred to in paragraph (4) of said will, or merely bequeathed to them a non-participating royalty from the oil and gas produced from any wells on the 150 acre farm.

It is the contention of the plaintiffs that paragraph (10) of the will merely gave to the four children and the survivors of the group in case of the death of any of the children the right to have the non-participating royalty from the gas produced from the well or wells so long as any child lived but that upon the death of the last child of John Rastle, Sr. the oil and gas In place would be owned by the heirs of all the children, by virtue of the fact that it was not disposed of by the will, and, therefore, he died intestate as to the oil and gas in place and the distribution thereof would be determined by the laws of descent and distribution.

It is the contention of the defendants that it was the intent of the testator, as indicated in paragraph (10) of his will, to give to his four children all of his interest in the oil and gas on the 150 acre farm, together with all royalties and income from any oil and gas produced thereon.

The plaintiffs rely on the case of Davis v. Hardman, 148 W.Va. 82, 133 S.E.2d 77, to sustain their contention that paragraph (10) of the will bequeathed only a non-participating royalty to the four children. The holding in the Davis case pertaining to such matters as are involved in the case at bar is that a court must ascertain the true intent of the parties as expressed in the written instrument under consideration, whether it be a deed, lease or will, and whether it be by grant, devise or reservation. In the Davis case the instrument was a deed and the grantor conveyed to the grantees the right to lease the lands for oil and gas, receive the bonuses and carrying rentals, and reserved to the grantor only a proportionate share of the oil and gas royalty when produced. It was clear from the wording of the deed in question that the intent was to reserve to the grantor only a non-participating royalty interest and it was so held. The Davis case, as stated above, involved a deed, and in addition to the clear wording contained in said deed, the rule is that deeds are always construed most strongly against the grantor and in favor of the grantee. 5 M.J., Deeds, § 58; Swope v. Pageton Pocahontas Coal Co., 129 W.Va. 813, 41 S.E.2d 691; Oakwood Smokeless Coal Corporation v. Meadows, 184 Va. 168, 34 S.E.2d 392.

In the instant case the instrument to be construed is a will, and different rules of construction are...