Runyon v. Mills

• Citation: 103 S.E. 112
• Decision Date: 04 May 1920
• Docket Number: (No. 4001.)
• Parties: RUNYON. v. MILLS et al.
• Court: Supreme Court of West Virginia

103 S.E. 112

RUNYON.

v.MILLS et al.

(No. 4001.)

Supreme Court of Appeals of West Virginia.

May 4, 1920.

(Syllabus by the Court.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Necessary Implication.] •

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Children.]

Appeal from Circuit Court, Mercer County.

Suit for partition by Elizabeth Howerton Runyon and others against Hugh G. Mills and others. Bill dismissed, and complainant Runyon appeals. Affirmed.

W. H. Malcolm, of Princeton, and Grover C. Worrell, of Mullens, for appellant.

Sanders & Crockett and A. G. Fox, all of Bluefield, and John R. Pendleton, of Princeton, for appellees.

WILLIAMS, P. Plaintiff, claiming to be an heir at law of Robert Mills, deceased, brought this suit against his other heirs at law for a partition of the laud belonging to his estate. The court denied her relief and dismissed her bill, and she has appealed. Robert Mills was twice married and left children by each one of his wives. Plaintiff is the daughter of Adeline Thompson, a bastard child of Lydia Thompson, who afterwards became the second wife of Robert Mills, and she claims that her mother was legitimated, and became an heir of Robert Mills upon his marriage to Adeline's mother and his recognition of Adeline as his child, by virtue of section 6, c. 78, Code W. Va. (sec. 3906). Lydia Thompson first married one Greene Sweeney and had two or three children by him, before she became the wife of Robert Mills. But Adeline was born before Lydia became the wife of said Sweeney, and there is some conflict in the testimony as to whether Adeline was actually the child of Robert Mills or of some one else, or whether he ever recognized her as his child before or after his marriage to her mother. However, in our view of the case, it is not necessary to consider this question, depending as it does upon conflicting testimony, for the reason presently to be stated. Plaintiff claims as a grandchild of Robert Mills, deceased, and states in her testimony that her mother married Anderson Mills, a distant relative of Robert Mills, and died the year the Civil War closed, years before the death of Robert Mills, and when plaintiff was a small child. She says she was then taken in the home of Robert Mills and raised by him. Robert Mills died in the year 1870, leaving a will in the following language, and which was probated on the 30th of March, 1871:

"Be it remembered that I, Robert Mills, of the county of Wyoming and state of West Virginia, being weak in body but sound in mind and perfect memory blessed be Almighty God for the same do make this my last will and testament in manner and form following that is to say, first I will and declare that my son Hugh G. Mills be made an equal heir with my last wife's children, and also to Milley E. McKinney, my oldest daughter I bequeath one dollar and to Emily McKinney, my second daughter I bequeath one dollar and to Marilla Mills my third daughter I bequeath one dollar and to ToTbiths J. Mills I bequeath one dollar and I also hereby appoint William T. Sarver, Benjamin Mills, Aiden Thompson and John Howerton, Esq., executors of this my last will and testament hereby revoking all former wills by be made, in witness whereof I have hereunto set my hand & seal this the 11th day of December, 1869.

"Robert, Mills."

The will, properly interpreted, disposes of the testator's property to Hugh G. Mills and the testator's children by his last wife, to the exclusion of plaintiff, a grandchild, whose mother, even if she was made testator's legitimate child, was dead before the will was made. The purpose in construing wills is to determine the intention of the testator, which must be given effect if its provisions are not in conflict with positive rules of law, and many rules are laid down to aid the courts in ascertaining such intention, one of which is that there always ex-ists a presumption against intestacy in respect to any part of testator's estate, and another is that the...