Security Nat. Bank & Trust Co. v. Willim

• Decision Date: 21 February 1967
• Docket Number: No. 12610,12610
• Citation: 153 S.E.2d 114,151 W.Va. 429
• Court: West Virginia Supreme Court
• Parties: SECURITY NATIONAL BANK & TRUST CO., etc., Trustee under the Last Will and Testament of Caroline C. Hughes, deceased, v. Eugenia Woodward WILLIAM et al., etc., Wheeling Dollar Savings & Trust Co., Committee for Patti Sweeney, an incompetent person.

Page 114

153 S.E.2d 114

151 W.Va. 429

SECURITY NATIONAL BANK & TRUST CO., etc., Trustee under the Last Will and Testament of Caroline C. Hughes, deceased, v. Eugenia Woodward WILLIAM et al., etc., Wheeling Dollar Savings & Trust Co., Committee for Patti Sweeney an incompetent person.

No. 12610.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 17, 1967.

Decided Feb. 21, 1967.

Syllabus by the Court

1. 'In construing a will the intention of the testator must be ascertained from the words used by him, considered in the light of the language of the entire will and the circumstances surrounding the testator when he made his will.' Point 1 Syllabus, Wooddell v. Frye, 144 W.Va. 755 (110 S.E.2d 916).

2. In a case involving the construction of a will made in 1900 by a testatrix who died in 1908, and particularly involving construction of language by which certain property was devised in trust for the benefit of a granddaughter of the testatrix for life and, upon her death, if she should leave a child or children surviving her, to such child or children, and the further provision that if the granddaughter should die without issue surviving her, the property should pass to other specified persons, a child adopted by the granddaughter, the life tenant, after the death of the testatrix cannot take such property under the will as a child or as issue of the granddaughter, the life tenant.

Bachmann, Hess, Bachmann & Garden, Gilbert S. Bachmann, Wheeling, for appellant.

Petroplus, Bailey, Byrum & Hesse, George G. Bailey, McCamic & McCamic, Jay T. McCamic, Henry S. Schrader, Ronald W. Kasserman, Schmidt, Laas, Schrader & Miller, Dennis R. Lewis, Wheeling, for appellee.

CALHOUN, President.

This case, on appeal from a final judgment of the Circuit Court of Ohio County, involves an action instituted in that court for the purpose of construing the provisions of the will of Caroline C. Hughes, deceased.

The primary question presented for decision is whether an adopted child takes under the will as a child or as issue of a life tenant.

The action was instituted in the circuit court by Security National Bank & Trust Company as trustee under the last will and testament of Caroline C. Hughes. The persons who were made defendants are descendants of the deceased brothers and sisters of the testatrix. The brothers and sisters were contingent remaindermen under the provisions of the will.

The estate was left by the will in trust for the benefit of the life tenant, Margaret W. Hervey, the daughter of Gertrude W. Hervey, the deceased daughter of the testatrix. The will contains in a separate paragraph the following provision:

'In case the said Margaret should die, leaving a child or children surviving her then all of the property held under this will shall go to such child or children. If the said Margaret should die without issue surviving her then all of the property held in trust under this will, after payment of her funeral expenses, shall go and pass to my brothers and sisters in equal shares, the share of any of them who may have died leaving children going to such children.'

The will was executed on May 5, 1900. The testatrix died on June 2, 1908. Margaret W. Hervey married Julian Sweeney and, on October 28, 1931, this married couple adopted a female child who was given the name of Patti Sweeney. Margaret W. Sweeney, the life tenant under the trust created by the will, died on September 1, 1965, survived by her adopted daughter. At the time of the death of the life tenant, the trust estate was valued by the trustee at more than four million, six hundred thousand dollars.

The complaint filed in the action to construe the will alleges that Margaret W. Sweeney, the life tenant, died without issue.

Wheeling Dollar Savings & Trust Company, committee for Patti Sweeney, who has become mentally incompetent, filed in her behalf in the action its answer and cross-petition, denying that Margaret W. Sweeney died without issue, and praying 'that the Court construe the Last Will and Testament of Caroline C. Hughes and determine that Patti Sweeney is the surviving child of Margaret W. Sweeney, a.k.a. Margaret W. Hervey, and that as such surviving child she is entitled to all the property held by petitioner as trustee under the will.'

Certain of the defendants to the action filed a motion for judgment on the pleadings pursuant to R.C.P. 12, asserting, in effect, that no material issues of fact were presented and that Patti Sweeney, the adopted daughter, is not issue or a child of Margaret W. Hervey, under the applicable principles and within the meaning of the provisions of the will.

By an order entered on July 12, 1966, the circuit court held and adjudged that 'Patti Sweeney, as an adopted daughter of the decedent, Margaret Hervey Sweeney, is not in law her child or issue and takes nothing under the Last Will and Testament of Caroline C. Hughes, * * *.' Accordingly, by the same order, the motion for judgment on the pleadings was sustained and the answer and cross-petition filed by the committee for Patti Sweeney were dismissed. From the judgment embodied in that order of the circuit court, the committee has been granted the appeal to this Court.

The material facts are undisputed. In this Court, the case was submitted for decision on the pleadings filed in the circuit court and upon briefs and oral argument of counsel.

In support of the contention that the adopted child must be regarded in this case as the child or as issue of the life tenant, counsel for the committee rely upon the provisions of Code, 1931, 48--4--5, as last amended in 1959. That statute provides, generally speaking, that, upon the entry of a decree of adoption, the natural parents shall be divested of all legal rights including the right of inheritance from or through the adopted child under the statutes of descent and distribution of this state and that the adopted child shall inherit from or through the parent or parents of such child by adoption in the same manner and to the same extent as though the adopted child were a natural child of such parent or parents, but the adopted child shall not inherit from his or her natural parent or parents. The portion of the statute upon which counsel for the committee place primary reliance was inserted therein by the 1959 amendment and is as follows: '* * * From and after the entry of such decree of adoption, the adopted child shall be, to all intents and for all purposes, the child of the person or persons so adopting him or her and shall be entitled to all the rights and privileges and subject to all the obligations of a natural child of such adopting parent or parents.'

In answer to this contention made in behalf of the committee in relation to the statute referred to immediately above, counsel for defendants assert that the 1959 amendment of the statute cannot be given a retroactive effect in determining the intention of the testatrix or the effect of the well executed in 1900; that the statute relates primarily to intestacy and, if the adopted child takes the estate in this case, it must be, not on the basis of intestacy, but rather by provisions of the will; that if it is pertinent for the Court to consider any statute, it must be only to the extent that such may be necessary and helpful in ascertaining the intent of the testatrix as expressed in her will; and that if it is permissible and proper to consider any statute in this connection, it must be the statute which was in effect when the will was executed, which statute, incorporated in Barnes Code, 1923, as Chapter 122, Section 4, provided, in part, that an adopted child could inherit from the adopting parent or parents as if born to them in lawful wedlock '* * * except that the said child shall not be capable of taking property expressly limited to the heirs of the body of the adopting parent or parents, nor property coming from the collateral kindred of such adopted parent or parents by right of inheritance: * * *.' In further answer to the same contention, counsel for the defendants refer to Code, 1931, 41--1--10, which provides: 'The validity and effect of wills executed prior to the time this Code becomes effective (January 1, 1931) shall be determined by the laws of this State in force at the time of their execution. * * *.'; and Code, 1931, 41--3--1, which provides that a will shall be construed 'with reference to the estate comprised in it,' to take effect as it if had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.

In 86 A.L.R.2d 12--104, there appears an annotation dealing with the subject of the rights of adopted children to take under various testamentary provisions. In connection with that annotation, innumerable decisions of appellate courts are referred to and categorized. While further reference will be made to that annotation, we will not burden or further lengthen this opinion by citation of cases which have been thus carefully and exhaustively treated. We will, however, refer to some additional decisions which, because of being more recent, were not referred to in the annotation.

Counsel for defendants rely primarily on the Court's decision in Wheeling Dollar Savings & Trust Co. v. Stewart, 128 W.Va. 703, 37 S.E.2d 563. We are of the opinion that the Stewart case is largely determinative of a proper decision of the instant case. That case involved a suit to construe a will dated February 4, 1925, by which the testator bequeathed certain money and securities valued at two hundred fifty thousand dollars to Wheeling Dollar Savings & Trust Company 'to be held in trust for the benefit of my daughter Nancy McHenry Hare and her direct descendants.' The will contained the following additional language: 'My trustees shall continue to hold and manage said trust fund until my said daughter shall die without leaving any descendant, or until all of her descendants...