Ross' Ex'r v. Kiger

• Decision Date: 21 November 1896
• Citation: 26 S.E. 193,42 W.Va. 402
• Parties: ROSS' EX'R. v. KIGER et al.
• Court: West Virginia Supreme Court

26 S.E. 193

42 W.Va. 402

ROSS' EX'R.

v.KIGER et al.

Supreme Court of Appeals of West Virginia.

Nov. 21, 1896.

Wills—Description of Beneficiary—Evidence —Construction.

1. Where money is bequeathed to a school by a testatrix, designating the object of her bounty by a wrong name, but fixing the locality, it may be shown by extrinsic testimony what school was intended in the will, and that it was the only school controlled by a certain denomination of religious people in that place.

2. Where a bequest of money is made to a missionary society by a testatrix, designating the society by a mistaken name in her will, it may be shown by extrinsic testimony and surrounding circumstances what missionary society was intended.

3. Where a testatrix, by her will, directs a residuum of her property to be equally divided between her heirs and her husband's heirs, said property should be divided into two equal parts, giving to her heirs one-half and to her husband's heirs the other half, per stirpes, and not per capita, unless they all stand in the same relation to the testatrix.

(Syllabus by the Court.)

Appeal from circuit court, Harrison county.

Bill by James Dunkin, executor of the will of Ellen C. Ross, against Mary R. A. Kiger and others, to construe a will. From the decree, Clara Ross and others appeal. Modified.

Edwin Maxwell, John Bassel, J. Hop. Woods, and Harvey W. Harmer, for appellants.

John J. Davis and Geo. C. Sturgiss, for appellee.

ENGLISH, J. On the 9th day of March, 1892, Ellen C. Ross, of Harrison county, executed her last will and testament, which was in her own handwriting, and appointed William E. Jolliff and James Dunkin as executors thereof, and said James Dunkin qualified as sole executor of said will, and on the first Monday in April, 1893, said executor filed a bill in the circuit court of Harrison county, praying, among other things, a construction and interpretation of said will, and a settlement of his accounts as such executor before one of the commissioners of said court. The clauses of the will concerning which difficulty was found in arriving at a proper construction read as follows: "I bequeath one thousand to the M. E. Church school situated in Buckhannon. My bank stock to the one who cares for me in my last sickness, if a niece on my side. The balance of property, land, and money in notes to be equally divided between my heirs and my husband's heirs, leaving out Mrs. Mary Ann Hoff, as she is already provided for. I bequeath five thousand to the M. E. Church Foreign Missionary Society ($5,000), to be paid over by W. Sheehy, and delivered to him in charge to pay over to society as a memorial fund in the name of George F. Ross and Ellen C. Ross. The balance of property not willed, land, etc., to be equally divided among George T. Ross' heirs and my heirs. The bequest to Mary Ann Hoff of one thousand dollars at her death to put in the hands of the trustees of the M. E. Church at West Milford, to lend out as a permanent fund to support the preacher of that church." Also: "I do hereby bequeath to the trustees of the Methodist Episcopal Church (53 acres) fifty-three acres of land to rent (the church at Bridgeport, of which I am a member); land which is situated on the opposite side of the pike from the scales of George T. Ross joining in Geo. Faris and Esom Robinson. I will and bequeath the rent of this land for the support of the church in Bridgeport to which I belong during the term of twenty years from the time of my death. At the end of twenty years I bequeath the said land to Cora E. Calvert, freefrom the debts or control of her husband should she marry; at her death to be sold (if she leaves no heirs), and the money given to the trustees of the M. E. Church, in trust to build a church on the said land, called the 'Ross Chapel.' " It seems to be conceded that the ruling of the court as to the clause giving 53 acres of land to the trustees of the Methodist Episcopal Church at Bridgeport for 20 years, and then to Cora E. Calvert, holding the same to be void as a devise to the said church for uncertainty; and also as to the devise of "one thousand dollars to Mary Ann Hoff; at her death to be put in the hands of the trustees of the M. E. Church at West Milford, to lend out as a permanent fund to support the preacher of that church, " —is correct, but, as no question is raised in regard thereto either in the assignment of errors or in the argument, we express no opinion in reference thereto.

Let us next inquire as to the ruling of the court with reference to the other clauses about which there is a controversy, and first as to the bequest of $1,000 to the M. E. Church school situated in Buckhannon; and, while it is true it appears that there is no school in the town of Buckhannon called the "M. E. Church school, " the question for consideration is whether it is competent to show by extrinsic testimony what school the testatrix intended by "the M. E. Church school situated in Buckhannon." And the same question arises in regard to the bequest of $5,000 to the M. E. Church Foreign Missionary Society, to be paid over by William Shee-hy, and delivered to him in charge to pay over to the society as a memorial fund in the name of George T. Ross and Ellen C. Ross, there being no missionary society of that exact name. First, as to the bequest to the M. E. Church school situated In Buckhannon: While it appears from the testimony that the name of the Methodist school situated in Buckhannon is known as the "West Virginia Conference Seminary at Buckhannon, " which Is controlled by the West Virginia annual conference, and that the testatrix was friendly to the school, and had contributed of her means towards it, that the school is often spoken of as the Methodist school at Buckhannon, and that there is no other Methodist school or seminary in the town of Buckhannon. As to the bequest to the M. E. Church Foreign Missionary Society, it appears in the testimony that there is not in the Methodist Episcopal Church any such organization as the M. E. Foreign Missionary Society, but that there is a society called the "Missionary Society of the Methodist Episcopal Church, " which operates in home and foreign fields, with its principal office in New York City, under the management of a board of managers appointed by the general conference of the Methodist Episcopal Church, and the same is incorporated under the laws of the state of New York; that the testatrix was a member of the Methodist Episcopal Church and contributed to its support, and that the Missionary Society of the Methodist Episcopal Church is carried on by a board of managers appointed by the general conference, and Its finances are taken up as free offerings of the people, and its funds received from voluntary contributions of its membership and others, and by its legacies and bequests from persons who are friendly to the church and to the society, who wish to give.

Now, the first question for our consideration Is whether extraneous testimony can be allowed to determine the object of a testator's bounty where a mistake occurs in the name or designation, or the object of the bequest is involved in ambiguity. This question has frequently been before the courts of the different states, and the great weight of authority, as we find it, allows such testimony to be introduced to show the leal object on which the testator intended to bestow his gift. So in the case of Chapped v. Society, 3 Ind. App. 356, 29 N. E. 924, reported in 50 Am. St. Rep. '276, it is held that: "For the purpose of determining the object of a testator's bounty in a will, extrinsic evidence is admissible to identify the legatee." Though no person or corporation in existence precisely answers to the name or description of the person or corporation to be benefited by a will, extrinsic evidence is admissible to show who was intended. Hence such evidence is competent to show that a bequest by a testatrix, a member of the Church of Christ, to the "Christian Missionary Society" of a certain state, was intended for the Missionary Society of the Churches of Christ of that state. To the report of this case is appended a very valuable note, citing numerous authorities. In the case of Gilmer v. Stone, 120 V. S. 586, 7 Sup. Ct 689, the syllabus reads as follows: "A., a resident in Irish Grove, Illinois, died there, leaving a will, by which, after bequeathing his library to the Presbyterian Church of Irish Grove, and $500 to the erection of another Presbyterian church in Illinois, and $50 to be paid to the minister's salary of the Presbyterian Church of Irish Grove for 1884, and some other bequests, he bequeathed and devised the remainder of his estate 'to be equally divided between the board of foreign and board of home missions.' The Presbyterian Church in the United States of America has a corporate 'Board of Foreign Missions' and a corporate 'Board of Home Missions, ' but it was agreed by counsel that several other religious bodies in the United States have similar organizations for the same purposes. Held, that there was a latent ambiguity in the will...