Sands v. Security Trust Co.

Decision Date16 June 1958
Docket NumberNo. 10910,10910
Citation143 W.Va. 522,102 S.E.2d 733
CourtWest Virginia Supreme Court
PartiesOliver J. SANDS et al. v. SECURITY TRUST COMPANY, etc., et al.

Syllabus by the Court

1. The case of Goetz v. Old National Bank of Martinsburg, 140 W.Va. 422 , distinguished.

2. This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.

3. The heirs and next of kin of a testator have no justiciable interest in a suit to construe the will of such testator, which will provides inter alia that: (1) cash annuities be paid for the respective lives of certain individuals; (2) that cash annuities be paid out of the income not previously committed in a prior section of the will to three churches for twenty years; (3) that the trustee named in the will is directed to devote testator's farm 'solely to some educational, scientific, religious, charitable or other public benevolent use, * * *', and authorizing the use of the trust income for this purpose after satisfying charges provided for in prior sections of the will; (4) that all remaining unexpended income '* * * shall be expended by my Trustee, exclusively in this State, solely for some educational, scientific, religious, charitable or other public benevolent use or any combination of them'; and (5) that 'Should my plan for a perpetual trust for educational, scientific, religious, charitable or other public benevolent uses fail for any reason, then and in that event the remaining corpus and any accumulations of income shall be distributed to the Trustee of the Diocese of the Protestant Episcopal Church in West Virginia for use exclusively in this State, after payment of the charges set forth' in prior sections of the will. In such case the testator's will effectuates a complete disposition of testator's property, and by its express terms provides against intestacy.

4. A provision of a will, containing prior provisions purporting to establish 'a perpetual trust for educational, scientific, religious, charitable or other public benevolent uses', which reads: 'Should my plan for a perpetual trust for educational, scientific, religious, charitable or other public benevolent uses fail for any reason, then and in that event the remaining corpus and any accumulations of income shall be distributed to the Trustee of the Diocese of the Protestant Episcopal Church in West Virginia for use exclusively in this State, after payment of the charges set forth' in prior sections of the will, is a valid disposition of testator's property, in the event of the failure of the perpetual trust for educational, scientific, religious, charitable and other public benevolent uses, which operates to prevent intestacy, and is effective as of the time of the probate of the will.

5. Code, 35-1-7, authorizes 'The trustee or trustees of any church, religious sect, * * *, or of any individual church, parish, congregation, or branch, within this State, * * * to receive donations, gifts and bequests of personal property, and, subject to' Code, 35-1-8, which limits the amount of real property which such organization may acquire, to take by devise, conveyance or dedication, or to purchase and hold, real property in trust for such church, religious sect, society or denomination, or for any individual church, parish, congregation or branch within this State.

Wm. Bruce Hoff, Parkersburg, John S. Stump, Jr., Clarksburg, Chauncey D. Hinerman, Moundsville, for appellants.

Riley & Riley, Paull, Petroplus & Bailey, Schmidt, Hugus & Laas, Henry S. Schrader, Wheeling, for appellees.

RILEY, Judge.

This is a suit in equity brought in the Circuit Court of Ohio County by some of the heirs and next of kin of Harry S. Sands, deceased, in which the plaintiffs in their original bill of complaint seek to have declared void ab initio the allegedly perpetual trust created by Item III of the Last Will and Testament of testator, dated March 11, 1952, and probated on July 3, 1952. The defendant, Secuity Trust Company, a corporation, which is hereinafter designated as 'appellee', qualified as executor and trustee under the provisions of the will and is acting as such trustee thereunder.

After the will had been probated in Ohio County, plaintiffs in this suit, who are the appellants in this Court and will be hereinafter designated as 'appellants', contested the validity of the will in the Circuit Court of Ohio County on the issue of devisavit vel non, and the circuit court by a final decree upheld the validity of the will. Thereafter two applications for appeal and supersedeas were made to this Court, and were denied; and likewise a motion for a rehearing on the denial of the second application for an appeal and supersedeas was refused.

The original bill of complaint filed in this suit prayed that the whole of Item III of testator's will be declared void ab initio, and that Security Trust Company be enjoined from further administering the estate and trust provided for in testator's will. Based upon the allegations of the original bill of complaint, the appellants urged that there was a trust in the estate resulting to them, and to testator's other heirs and next of kin. Section 3 of Item III of testator's will provided for life annuities to the appellants and other heirs at law and next of kin of testator. In their original bill of complaint appellants sought to void ab initio their own annuities, as well as the perpetual trust provided for in Sections 4, 5, and 6 of Item III of the will.

Joint and separate demurrers were filed by Security Trust Company, executor and trustee as aforesaid, and other appellees, which demurrers the trial court sustained on the sole ground that Section 7 of Item III of the will was valid, and appellants could not prosecute this suit, though the other sections of Item III of the will, in particular those which provided for a 'perpetual trust for educational, scientific, religious, charitable or other public benevolent' purposes should fail.

The Circuit Court of Ohio County, on its own motion, certified its ruling on the demurrers to this Court, which certificate involved only the decision of the circuit court on the point of law: '(1) That Section 7 of Item III of the Last Will and Testament of Harry S. Sands, deceased, is enforceable and valid, and undr said Section the Trustees of the Diocese of the Protestant Episcopal Church in West Virginia are the residuary beneficiaries of the Estate in the event of the failure of the perpetual charitable trust otherwise established in said will and that, as the parties plaintiff cannot participate in any distribution of the trust corpus and cannot benefit by a construction of the said Last Will and Testament of Harry S. Sands, deceased, they have no interest in the subject matter of this suit, no standing in this Court, and no right to maintain this suit.'

This Court refused to docket the certification by order entered on February 13, 1956.

Some time after the refusal of this Court to docket the certified case, appellants tendered and filed in the Circuit Court of Ohio County an amended and supplemental bill of complaint, in which they prayed for the same relief they had prayed for in their original bill of complaint. In the amended and supplemental bill of complaint, however, the theory advanced in the original bill of complaint to the effect that the allegedly charitable perpetual trust provided for in testator's will was void ab initio was abandoned; and the appellants do not in this Court contend that their annuities are void ab initio; in fact, appellants failed to attack the validity of these annuities in any manner.

The appellees, who are the defendants impleaded in the original bill of complaint, as well as the other defendants impleaded in the amended and supplemental bill of complaint, filed separate demurrers to the amended and supplemental bill of complaint, which demurrers were sustained by the circuit court, and appellants' amended and supplemental bill of complaint was dismissed.

From a careful reading of this record, it appears that the Circuit Court of Ohio County, in sustaining the demurrers to the amended and supplemental bill of complaint, held that Section 7 of Item III of the Last Will and Testament under consideration is valid; and, therefore, the Diocesan Trustees of the Protestant Episcopal Church of the Diocese in West Virginia, the named beneficiaries in Section 7 of Item III of testator's Last Will and Testament, would take in the event the perpetual trust set forth in the preceding sections of Item III should be void.

This appeal is prosecuted to a final decree of the Circuit Court of Ohio County in sustaining the demurrers to the amended and supplemental bill of complaint and dismissing such amended and supplemental bill of complaint.

In the consideration of this case, the pertinent provisions of the will are embraced in Sections 1, 2, 3, 4, 5, 6, and 7 of Item III of testator's will and read as follows:

'Item III: Section 1. All the rest, residue and remainder of my property, real and personal, of whatsoever kind or character or which I may own or have any interest in at the time of my death, I give, devise and bequeath to Security Trust Company, a West Virginia corporation, with its principal place of business in the City of Wheeling, Ohio County, West Virginia, or its successor,

'Harry S. Sands

'In Trust, for the following uses and purposes:

'Section 2. Upon my death, I authorize and empower both my Trustee, in its sole discretion, and during the period of administration of my Estate, my Executor, in its sole discretion, either:

'(a) To continue to hold the stock of Sands Electric Company and to exercise the same powers of a stockholder therein, as I might do if living, or

'(b) To sell this stock, either at public or private sale, or

'(c) To vote for...

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