Security Nat. Bank & Trust Co. v. Willim

• Citation: 152 W.Va. 27,158 S.E.2d 715
• Decision Date: 16 January 1968
• Docket Number: 12655,Nos. 12654,s. 12654
• Court: Supreme Court of West Virginia
• Parties: SECURITY NATIONAL BANK & TRUST CO., etc., Trustee, etc. v. Eugenia Woodward WILLIM et al., and Edwin McMahon Singer, Administrator of theEstate of Ruth M. Woodward, and the Chase Manhattan Bank, a corporation, Executor under the Last Will and Testament of Philip G. Woodward. SECURITY NATIONAL BANK & TRUST CO., etc., Trustee, etc. v. Eugenia Woodward WILLIM et al., and the First National Bank of Birmingham, Trustee under the Will of H. G. Woodward, and Executor under the Will of JosephH. Woodward, II.

Page 715

158 S.E.2d 715

152 W.Va. 27

SECURITY NATIONAL BANK & TRUST CO., etc., Trustee, etc. v. Eugenia Woodward WILLIM et al., and Edwin McMahon Singer,

Administrator of theEstate of Ruth M. Woodward, and the

Chase Manhattan Bank, a corporation, Executor under the Last

Will and Testament of Philip G. Woodward.

SECURITY NATIONAL BANK & TRUST CO., etc., Trustee, etc. v. Eugenia Woodward WILLIM et al., and the First National Bank

of Birmingham, Trustee under the Will of H. G.

Woodward, and Executor under the Will of

JosephH. Woodward, II.

Nos. 12654, 12655.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 27, 1967.

Decided Jan. 16, 1968.

Syllabus by the Court

1. Where the legal title to an active trust estate is by will placed in a trustee who is required to distribute the property upon the happening of an event, a fee simple defeasible, sometimes called a determinable, base or qualified fee, is created in the trustee.

2. 'Ordinarily a will takes effect as of the date of testator's death, but if the language thereof shows that the testator intended that a testamentary disposition therein made should be effective at a different date, the intention of testator controls, if no positive rule of law is thereby violated.' Point 2, Syllabus, Wheeling Dollar Savings & Trust Company v. Stewart, 128 W.Va. 703 (37 S.E.2d 563).

3. 'The intention of the testator must be given effect in the construction of his will, unless that intention violates some positive rule of law.' Point 2, Syllabus, Mauzy v. Nelson, 147 W.Va. 764 (131 S.E.2d 389, 97 A.L.R.2d 732).

4. 'The rule in favor of the early vesting of estates should not be applied in the interpretation of a will so as to contravene the expressed intention of the testator.' Point 3, Syllabus, Tharp v. Tharp, 131 W.Va. 529 (48 S.E.2d 793).

5. 'In the construction of a will technical words are presumed to have been used in a technical sense and should ordinarily be given their strict meaning; but this rule is not absolute and when it appears from the context that another meaning was intended such words will not be applied in their technical sense.' Point 8, Syllabus, Weiss v. Soto, 142 W.Va. 783 (98 S.E.2d 727).

6. 'Though generally the word 'children,' as used in a deed or will, refers to the immediate descendants of a designated person, it may under some circumstances bear a broader meaning and connote the entire line of descendants. In order to determine the sense in which it was used by the grantor or testator, it is necessary to look to its context, considered in the light of all the provisions of the instrument.' Point 4, Syllabus, Maddy v. Maddy, 87 W.Va. 581 (105 S.E. 803).

Goodwin, Mead & Goodwin, Charles P. Mead, Ronald W. Kasserman, Wheeling, for appellants.

Petroplus, Bailey, Byrum & Hesse, George G. Bailey, McCamic & McCamic, Jay T. McCamic, Schmidt, Laas, Scharder & Miller, Henry S. Schrader, Dennis R. Lewis, Wheeling, Graham, Dunn, Johnston & Rosenquist, Donald G. Graham, Seattle, Wash., for appellees.

CAPLAN, Judge.

This is an appeal from a final judgment of the Circuit Court of Ohio County rendered in a declaratory judgment proceeding instituted by the Security National Bank & Trust Company. The said bank hereinafter sometimes referred to as 'Security' instituted an action in the aforesaid court as trustee under the Last Will and Testament of Caroline C. Hughes seeking the court's advice and direction concerning the true intention and meaning of said will. Ultimately, Security seeks a construction of the Hughes will so that it may dispose of the assets of this estate in accordance with the direction of the court.

In its petition the Security National Bank & Trust Company named as defendants the following: Eugenia Woodward Willim, Anne Woodward Lundbeck, Martha Woodward Webb, Allan H. Woodward, Jr., Mary Woodward, an infant, Anne Jemison Woodward, an infant, Margaret Woodward Spencer, Joseph W. Simpson, Jean Herring Rowe, Donald Grant Herring, III, an infant, Margaret Woodward Herring, an infant, Patricia Herring Stratton, Mary Dana Young, an infant, Francis Penn Young, an infant, Hannah Young, Sarah Young, an infant, Lawrence Woodward Young, Philip W. Young, Anne B. Young Lewis, L. Woodward Franzheim, Louise Franzheim Lang, Jessie W. Franzheim Stuart, Margaret A. Woodward, Laurence Woodward McCarty, Jr., Eleanor McCarty Dionne; Edwin McMahon Singer, Administrator of the Estate of Ruth M. Woodward, deceased; The Chase Manhattan Bank, a corporation, Executor under the Last Will and Testament of Philip G. Woodward, deceased; and all unknown persons having or claiming an interest in and to the property held in trust under the Last Will and Testament of Caroline C. Hughes, deceased. A further defendant was The First National Bank of Birmingham, Trustee under the will of H. G. Woodward and Executor under the will of Joseph H. Woodward, II which, on its motion, was granted leave to file its answer to the petition of Security.

Caroline C. Hughes executed her will on May 5, 1900 and departed this life on June 2, 1908. By the provisions of her will she devised and bequeathed to Harry C. Franzheim all of her property of every kind whatsoever to be held in trust 'for the sole, separate and exclusive use and benefit of Margaret W. Hervey, the daughter of my deceased daughter Gertrude W. Hervey'. This trust was to exist for the benefit of the granddaughter for and during her lifetime. Subsequent thereto the will disposed of the remainder of the estate in the following language:

'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 to 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.'

It is this quoted portion of the will which gives rise to this controversy.

Caroline C. Hughes had eight brothers and sisters. Three of them predeceased her, the remaining ones having died before the death of the testatrix's granddaughter, Margaret Hervey Sweeney, who died September 1, 1965, without issue surviving her. See Security National Bank & Trust Co. v. Willim, W.V., 153 S.E.2d 114.

The primary determination to be made in this case is the time of vesting of the estate, that is, whether the estate vested at the death of the testatrix in 1908 or in 1965 at the death of the life tenant.

Upon trial of this matter in the cirduit court, the court by its order dated August 22, 1966, made the following findings: '(1) That the will of Caroline C. Hughes unequivocally indicates an intention upon the part of the testatrix that, should Margaret Hervey Sweeney die without issue, the testatrix desired to distribute her estate to her brothers and sisters or their direct descendants. (2) That the word 'children' was used conclusively by the testatrix to indicate a marked desire not only that no legacy should lapse but that there should be a per stirpes distribution in the event that Margaret Hervey Sweeney died without issue surviving her. (3) That as testatrix intended that the children, grandchildren or great-grandchildren of her brothers and sisters should have per stirpes participation in her estate, the persons who would eventually take under her will can only be ascertained at the date of the death of Margaret Hervey Sweeney and not at the date of the death of the testatrix. (4) The under the provisions of the will the property to be distributed could not be ascertained until the time of the death of Margaret Hervey Sweeney, further indicating the intention of the testatrix that the persons who should take under her will should be ascertained at said date. (5) That the provisions of the will of Caroline C. Hughes show the clear intention of the testatrix that her residuary beneficiaries be determined upon the death of the life tenant, and that the vesting date so far as the ultimate remaindermen are concerned was the date of the death of Margaret Hervey Sweeney.'

It is from this order that the appellants pursue this appeal. Two separate petitions for appeal were filed in this Court but inasmuch as both petitions involved the same issues pertaining to the Hughes will, the cases were presented and heard together. The appellants on this appeal are Edwin McMahon Singer, Administrator of the Estate of Ruth M. Woodward who died without issue in 1963; The Chase Manhattan Bank, Executor under the Last Will and Testament of Philip G. Woodward who died without issue in 1964; and The First National Bank of Birmingham as Trustee under the will of H. G. Woodward who died without issue in 1930, and as Executor of the will of Joseph H. Woodward, II who died June 25, 1965. As noted, all appellants are fiduciaries of deceased persons who, had they survived the life tenant, would have been in the class of descendants of brothers and sisters of the testatrix. All appellees, other than Security, are living persons who are direct descendants of the brothers and sisters of Caroline C. Hughes.

It is the contention of the appellants herein that the will in question is clear and unambiguous and that application of the plain language thereof shows that the estate vested at the death of the testatrix and not at the death of the life tenant. Also, the appellants assert that equity favors early vesting unless a contrary intention shall appear by the will. It is a further contention of the appellants that the word 'children' used in the above quoted paragraph of the will means only children of the first degree.

The appellees on the other hand contend that a reading of the will in its entirety reflects the clear intention of the testatrix to cause a vesting of the estate and the determination of each legatee's share at the death...