Seifert v. Sanders
| Decision Date | 15 May 1987 |
| Docket Number | No. 16817,16817 |
| Court | West Virginia Supreme Court |
| Parties | Merle SEIFERT v. Harley SANDERS. |
Syllabus by the Court
1. Where in a joint and mutual will persons devised all their real and personal property to the survivor of them to take and hold as his or her sole and entire property and vested in the survivor the power to dispose of the same and the will further provided that at the death of the survivor, the property "which shall not have been disposed of" would become, in equal shares, the property of certain named children and grandchildren, the survivor received a fee simple estate in the property and the power to dispose absolutely of such property.
2. Depending upon the language used in an instrument by a grantor of a power to dispose of real and personal property, that power may be executed not only by a conveyance inter vivos, but that power may also be executed by will.
3. Syl. pt. 4, Guaranty National Bank v. Morris, 176 W.Va. 228, 342 S.E.2d 194 (1986).
4. Syl. pt. 1, In re Estate of Teubert, 171 W.Va. 226, 298 S.E.2d 456 (1982).
Charles V. Wehner and Richard K. Wehner, Kingwood for appellant.
Frank B. Everhart and David P. Brown, Kingwood, and William L. Frame, Morgantown, for appellee.
This case is before this Court upon the appeal of Harley Sanders from a final order of the Circuit Court of Preston County. Pursuant to that order the appellee's motion for summary judgment was granted holding the holographic will of Sylvia M. Sanders "for naught" because it revoked provisions of the joint and mutual will, which she had executed with her husband, Willie S. Sanders, which on its face stated its irrevocability. All other questions were determined moot. This Court has before it the petition for appeal, all matters of record and the briefs of counsel.
The appellant is Harley Sanders, the son of Willie and Sylvia Sanders.
The appellee is Merle Seifert, the appellant's sister.
I
Willie and Sylvia Sanders, both of whom are now deceased, farmed some acreage in Preston County. On March 8, 1970, they executed a joint and mutual will 1 with the following provisions pertinent to our discussion of this case:
We, Willie S. Sanders and Sylvia M. Sanders, husband and wife, ... do hereby make, publish and declare this our joint will, to be irrevocable by either of us, unless both join in the revocation thereof, ...
....
Subsequently, Willie S. Sanders died. Two months later, on March 23, 1973, Sylvia M. Sanders executed the following handwritten instrument:
This is a note for Harley S. Sanders to operate Willie S. Sanders Farm the way he thought best to operate it I Sylvia M. Sanders herd Willie tell Harley to keep his cattle here on the Farm and Plant and sow what ever he needed to do.
Several years later, Sylvia M. Sanders died. The joint and mutual will was probated as her last will and testament. Harley Sanders subsequently petitioned to have the holograph admitted to probate. His petition was granted by the Preston County Commission, and the holographic will was admitted to probate.
Neither the appellant nor the appellee question the validity of the March 8, 1970 joint will executed by Willie and Sylvia Sanders.
The appellant contends that the joint and mutual will devised the testator's real and personal property to the survivor in fee. The appellee, however, maintains that the joint and mutual will provided the surviving testator with a life estate in the real and personal property of the estate.
W.Va.Code, 36-1-11 [1931] provides:
When any real property is conveyed or devised to any person, and no words of limitation are used in the conveyance or devise, such conveyance or devise shall be construed to pass the fee simple, or the whole estate or interest, legal or equitable, which the testator or grantor had power to dispose of, in such real property, unless a contrary intention shall appear in the conveyance or will.
That statute, as it relates to the action now before us, provides that if any interest in real property is conveyed or devised to any person without using words of limitation, a fee simple shall pass to the grantee. In case of doubt, the creation of a fee estate rather than a lesser estate is clearly favored. The burden of proving the lesser estate is cast on the party asserting that the estate is less than a fee simple. 96 C.J.S. Wills § 809 at 235 (1957); see also Cockrell v. Jones, 275 So.2d 105, 107 (Miss.1973); Sheldon v. Lewis, 13 Ohio Op.2d 297, 299, 158 N.E.2d 919, 922 (Madison County C.P.Ct.1959); Weiss v. Broadway National Bank, 204 Tenn. 563, 568, 322 S.W.2d 427, 430 (1959).
A fee simple may also be created if a lesser estate is not specified and the grantee is given a power of disposition. 96 C.J.S. Wills § 817 at 249 (1957); see also Capers v. Jackson, 503 S.W.2d 681, 682 (Tex.Civ.App.1973); Quickel v. Quickel, 261 N.C. 696, 698, 136 S.E.2d 52, 53-54 (1964). As stated in a leading treatise on future interests:
When a donee is given an interest by virtue of language which, standing alone, might be construed to create a life estate, and by the same instrument he is given a power of disposal, ... if the language giving the interest does not specify the estate granted, and is accompanied by an unrestricted express power to dispose of the fee, or absolute interest, a construction to the effect that a fee simple or absolute interest has been created is proper....
L. Simes and A. Smith, The Law of Future Interests § 893 at 363 (2d ed. 1956); see also Flynn v. Flynn, 469 S.W.2d 886, 887 (Ky.1971); Wenzel v. Menchaca, 354 S.W.2d 635, 639 (Tex.Civ.App.1962); Johnson v. Stark, 585 S.W.2d 900, 904 (Tex.Civ.App.1979). 2
In Wooddell v. Frye, 144 W.Va. 755, 110 S.E.2d 916 (1959), this Court concluded that a provision of a will which conveyed "all my property of [sic] both personal and real to my wife ... to be hers absolutely" vested in the wife an absolute fee simple estate in the real estate. The Court reasoned that the immediately subsequent provisions that "the use of all all the of which I may die seized and possessed for and during her natural life; and it is my will that after her death my said real estate shall dsend to any in my children if there be any living[,] share and share alike" (emphasis in original) were not as clear and decisive as the words creating the fee simple estate, and did not take away, limit or diminish the fee simple.
Similarly, this Court has held that "[w]here the plain intention of the testator, as gathered from a consideration of the entire will, was to create [a fee simple estate], [that estate] will not be defeated by a subsequent paragraph having for its purpose the disposition of a possible residuum on the death of the wife." Syl. pt. 2, Totten v. Dawson, 104 W.Va. 274, 139 S.E. 858 (1927).
This Court in Totten recognized that where an estate is devised to a person "generally or indefinitely," with a power of disposition, the grantee takes the property in fee simple. 104 W.Va. at 276, 139 S.E. at 858. A gift in fee simple may not be taken away, limited or diminished by a subsequent clause in a will, except by provisions which are equally as clear and decisive as the words of donation. Wooddell v. Frye, 144 W.Va. 755, 761, 110 S.E.2d 916, 920 (1959).
Thus, where an estate in lands is created by will, a fee simple results if a lesser estate is not clearly indicated by the language of the instrument. Totten v. Dawson, supra; 96 C.J.S. Wills § 810 at 234-35 (1957); see also Tarr v. Newby, 146 Colo. 296, 299, 361 P.2d 622, 624 (1961). A testator desiring to give a qualified estate instead of an absolute one must employ language clearly importing an intention to do so.
In the case before us, the testators' use of the language "sole and entire property" is significant. The term "sole" is defined as individual, separate or comprising one person. Black's Law Dictionary 1248 (5th ed. 1979). The phrase "entire property" has been utilized by this Court to more precisely define what constitutes a fee simple estate. See Yeager v. Town of Fairmont, 43 W.Va. 259, 261, 27 S.E. 234, 234 (1897).
Based upon the above, we hold that where in a joint and mutual will persons devised all their real and personal property to the survivor of them to take and hold as his or her sole and entire property and vested in the survivor the power to dispose of the same and the will further provided that at the death of the survivor, the property "which shall not have been disposed of" would become, in equal shares, the property of certain named children and...
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