Stephenson v. Kuntz

• Decision Date: 15 June 1948
• Docket Number: 9942,9943.
• Citation: 49 S.E.2d 235,131 W.Va. 599
• Parties: STEPHENSON v. KUNTZ et al. (two cases).
• Court: West Virginia Supreme Court

49 S.E.2d 235

131 W.Va. 599

STEPHENSON v. KUNTZ et al. (two cases).

Nos. 9942, 9943.

Supreme Court of Appeals of West Virginia.

June 15, 1948

Rehearing Denied Sept. 20, 1948.

Appeal from Circuit Court, Nicholas County.

Syllabus by the Court.

1. 'The word 'heirs,' when used in an instrument of conveyance to designate the class of persons to whom an estate is conveyed, should be given its legal and technical meaning, unless there is some other language in the conveyance clearly showing that the word was intended to have a different meaning, or unless the circumstances of the case are inconsistent with such meaning.' Irvin v Stover, 67 W.Va. 356, 67 S.E. 1119.

2. Where a deed conveys land to a person 'during her natural life and at her death to go to her son Van M. Stephenson and his heirs and in the event that Van M Stephenson shall die without any heirs then the real estate herein conveyed shall go back to the surviving heirs of Madison Stephenson forever', the word 'heirs' used in connection with the phrase 'in the event that Van M. Stephenson shall die without any heirs', will be construed to mean child or children surviving Van M. Stephenson.

3. Madison Stephenson conveyed land to Mary S. Stephenson 'during her natural life and at her death to go to her son Van M. Stephenson and his heirs and in the event that Van M. Stephenson shall die without any heirs then the real estate herein conveyed shall go back to the surviving heirs of Madison Stephenson forever'. Madison Stephenson and Mary S. Stephenson died prior to the death of Van M. Stephenson, who died without child or children surviving him. Held: That Van M. Stephenson, upon the death of Mary S. Stephenson, took a base, defeasible, or qualified fee simple estate in the land conveyed by said deed, which, on his death without child or children surviving him, passed to the children of Madison Stephenson, surviving at his death, and to their descendants.

4. A devise and bequest 'to the trustees of the several churches of the Summersville Charge or Circuit of the Methodist Episcopal Church (North)', is not defeated, where, subsequent to the date of the will making such devise and bequest, and before the death of the testator, there has been a union or merger of the Methodist Episcopal Church, with the Methodist Episcopal Church, South, and the Methodist Protestant Church, under the name of the Methodist Church, and a rearrangement of Circuits or Charges of the Methodist Church, in the same community, which does not in any substantial way effect the intended distribution of the property covered by such original devise and bequest.

5. As a general rule, this Court will not consider questions fairly arising on the record in the trial court, and not decided by that court.

Eakle & Eakle and B. C. Eakle, all of Clay, for other appellants.

G. G. Duff, Breckinridge & Brown, and B. P. Brown, Jr., all of Summersville, for appellant John B. Breckinridge.

Wolverton & Callaghan and Brooks B. Callaghan, all of Richwood, W. G. Brown, of Summersville, and Jno. T. Simms, of Charleston, for appellees.

FOX Judge.

On December 7, 1887, Madison Stephenson was the owner of approximately 500 acres of land, situated on Peters Creek, in Nicholas County, and by deed of that date conveyed same to Mary S. Stephenson. Inasmuch as the basic controversy in this cause depends upon the intent of the parties and the construction of said deed, the same is incorporated herein in its entirety, and reads as follows:

'This Deed made this 7th day of December 1887, between Madison Stephenson and his wife Betsey Stephenson of the first part of the County of Clay and State of West Virginia and Mary S. Stephenson of the second part of the County of Nicholas and State of West Virginia: Witnesseth that the parties of the first part for and in consideration of the interest of the second party in her Father Estate William G. Fitzwater, deceased the receipt whereof is hereby acknowledged in full do grant bargain sell and convey unto the party of the second part all the land owned by the party of the first part in Nicholas County during her natural life and at her death to go to her son Van M. Stephenson and his heirs and in the event that Van M. Stephenson shall die without any heirs then the real estate herein conveyed shall go back to the surviving heirs of Madison Stephenson forever the land formerly owned by John G. Stephenson John A. Stephenson John D Stephenson and also an interest in 80 acres on Coopers Creek the said parties of the second part to have and to hold the said tracts or parcels of land forever together with all the appurtenances thereto belonging and the said parties of the first part also hereby covenants with the party of the second part that they will warrant generally the title to the property hereby conveyed. Witness the following signatures and seals the day and year first above written.

'Madison Stephenson (Seal)

'Betsy Stephenson (Seal)'

This deed was duly acknowledged before C. Pierson, a Notary Public of Clay County, and recorded in Nicholas County on November 4, 1891.

Following the execution of the said deed, on a date not known, but certainly prior to the death of Van M. Stephenson, Madison Stephenson died leaving surviving him William M. Stephenson, Mary Stephenson Elliott, Dora Callison, Phlista Dunford and John Stephenson, his children and heirs at law. Whether any of his children predeceased him leaving issue, the record does not disclose. On March 27, 1920, Mary S. Stephenson died leaving surviving her, her son, Van M. Stephenson, the same person as that named in the deed of December 7, 1887, aforesaid. On February 3, 1945, Van M. Stephenson died testate, but without issue or any descendants surviving him, John D. Stephenson, a son of said Van M. Stephenson, having died without issue on November 7, 1943.

The will of Van M. Stephenson was executed on January 10, 1936, and was probated in the office of the Clerk of the County Court of Nicholas County on February 6, 1945. By said will, the testator, after providing for the payment of his debts, and for a monument, bequeathed to his son, John D. Stephenson, then living, the sum of $1. He then made the following disposition of his estate by a residuary devise and bequest, which reads as follows:

'I give, devise and bequeath to the trustees of the several churches of the Summersville Charge or Circuit of the Methodist Episcopal Church (North) all the balance and residue of my personal property of whatever kind and wherever located. I direct my executor to sell all my tangible personal property and to collect all collectible debts owing to me and to divide money and bonds, if I own bonds at my death, among the several boards of trustees of the several churches of said Charge or Circuit as composed at my death so that each church shall share equally.

'I give, devise and bequeath to the trustees of the same churches mentioned above a certain cemetary in Summersville District, Nicholas County, West Virginia, containing five-tenths (5/10) acres, more or less, which I own by virtue of the deed mentioned below.

'I direct my executor to sell within reasonable time after my death, either as a whole or by parts as he may find best, all the balance and residue of my real estate, particularly two hundred forty-one (241) acres, more or less, in Summersville District, Nicholas County, West Virginia, which I own by virtue of a deed made by Madison Stephenson and Betsey Stephenson, his wife, to Mary S. Stephenson and Van Stephenson, dated December 7, 1887, and recorded in the office of the Clerk of the county court of Nicholas County in Deed Book 25 at page 296. Until such time as he may sell to advantage, he shall have the power to rent said real estate either as a whole or by parts and shall have the power to pay taxes and other necessary expenses for the benefit of said real estate from income derived from rental thereof. I give, devise and bequeath to the trustees of the churches mentioned above the proceeds of sale or sales of said real estate and the net income from rental after payment of taxes and other expenses as aforesaid and direct my executor to divide said money among the several boards of trustees of the several churches of said Charge or Circuit as composed at my death so that each church thereof shall share equally.'

It will be noted that the real estate directed to be sold, and the proceeds thereof distributed, consisted of 241 acres. This is the same tract of land commonly referred to as 241.5 acres, and constituted the residue of the 500 acre tract conveyed by Madison Stephenson to Mary S. Stephenson, by deed dated December 7, 1887. It appears that a part of said larger tract had been conveyed by Mary S. Stephenson or Van M. Stephenson in their lifetime. In the said will, the testator named C. E. Stephenson as the executor of his will and estate.

The property of which, as contended by the plaintiff, executor, his testator died seized and possessed, was appraised at $20,271.02. The tract of 241 acres of land mentioned in the will was appraised at $11,000; the tract of 1 acre adjoining at $25; tangible personal property at $330.50; cash found in residence and deposited in bank, $4,422.47; and government securities $4,493.75.

The executor named in the will, C. E. Stephenson, qualified as such, converted the tangible personal property into cash paid the testator's debts, and made a settlement of his accounts before a commissioner of accounts. The said commissioner of accounts did not designate the beneficiaries of the testator's estate, but recommended the institution of a suit in equity to secure from a court of competent jurisdiction such designation, and for its general aid in the further...