Stout v. Clifford.

• Decision Date: 19 December 1911
• Citation: 70 W.Va. 178
• Court: West Virginia Supreme Court
• Parties: Stout v. Clifford.

70 W.Va. 178

Stout

v.Clifford.

Supreme Court of Appeals of West Virginia.

Submitted September 7, 1911.

Decided December 19, 1911.

Witxs Construction Nature of Estate Devised.

The will in this case gives Sarah Clifford only an estate for life, with the remainder to testator's children vesting at his death.

Appeal from Circuit Court, Harrison County.

Bill by Clarence P. Stout against John H. Clifford and others. Decree for plaintiff and John H. Clifford and certain other defendants appeal.

Affirmed.

Joli n Bassel, Sperry & Sperry, Davis & Davis and George M. Uoffheimer, for appellants.

Edward D. Smith and Stephen G. Jackson, for appellee Clarence P. Stout. Philip P. Steptoe, for appellees Clifford McManaway and Angela McManaway.

Bbaxxox, Judge:

James Clifford made a will reading as follows, omitting formal opening: "I will and bequeath to my wife Sarah Clifford for and during her natural life all my real estate and personal property and also all my notes and bonds and bank stock of every description and kind-and after my wife is death that the property if any is left shall be divided eucely amoung the children no bond or security shall be required of executor/' He died in 1892 leaving his widow, Sarah Clifford, and seven children. One of these children, Agnes, married Clarence P. Stout in 1898. Agnes Stout died intestate in 1899, leaving an infant child. Benjamin Clarence Stout, and this child died in 1900, leaving his father as his heir. Sarah Clifford, the widow of James Clifford, died in 1909. Clarence P. Stout, claiming as father and heir of his deceased infant son, Benjamin Clarence Stout, that he was entitled to one seventh of the real estate of James Clifford, brought a suit in the circuit court of Harrison county against the children of Clifford for a partition of the real estate left by Clifford. The case resulted in a decree holding that Stout was entitled to one seventh interest in said real estate, and that certain grand children of James Clifford had also shares therein in right of their dead parents, who died after the death of James Clifford, and directing a partition of said real estate. From this decree John Clifford, Sarah E. Dolan and Anna C. Brennan appealed.

What estate did the widow, Sarah Clifford, take under the will of James Clifford? On the answer to that cuestion depends the decision of this case. A number of able and elaborate briefs discuss this case in many views, and. cite dozens of cases from all quarters more or less bearing upon it. I shall not discuss any large fraction of them, because to do so would make an opinion prolix, and confusing and becloud rather than enlighten. To the members of this Court the case has not seemed difficult. The intent of Clifford in his will must control.

It has been well said that, "in disputes upon wills cases seldom elucidate the subject, which, depending on the intention of the testator, to be collected from the will, and from the relative situation of the parties, ought to be decided upon the state and circumstances of each case." So said President Pendleton in 1791 in Sliermer v. Shermer, 1 Wash. 266. He added that he generally observed that cases more frequently disappoint tlian illustrate the intention, and that he was free to own that where a testator's intention was apparent to him, cases must be strong, uniform and apply pointedly, before they would prevail to frustrate that intention.

It is claimed for the appellants that Sarah Clifford, widow of James Clifford, under his will took an estate in fee, not a mere life estate, and only those who can claim as heirs under her can take any interest, which would shut out Stout, and that the decree giving him a share is erroneous. This contention that Sarah Clifford took a fee is based on the case of May v. Joynes, 20 Grat. 692, decided in 1857, and cases following it. That case involved a will by which the testator gave to his wife "my whole estate real and personal, especially all real estate I may hereafter acquire, to have during her life, but with full power to make sale of any part of the said estate and to convey absolute title to the purchasers, and use the purchase money for investment or any purpose that she pleases, with only this restriction, that whatever remains at her death shall, after paying any debts she may owe, or any legacies that she may leave, to be derided as follows:" then specifying limitations to his children and grand children. It was held that the wife took an absolute fee and that the limitation over of whatever remained at her death was inconsistent with such fee simple and failed. This is based on the doctrine spoken in Burwell v. Anderson, 3 Leigh 348, saying that from the earliest time it was received doctrine of common law, that an absolute and unqualified power of disposing, conferred by will, and not controlled or explained by any other provision, should be construed as a gift of absolute property; that the power of absolute disposition is the eminent quality of absolute property; that he who has the absolute prop- erty and that lie to whom is given the absolute power over an estate acquires thereby absolute property, unless there is something in the gift which negatives and overthrows this otherwise irresistible implication. In Milhollen v. Rice, 13 W. Va. 510, Judge Green said this: "It is settled, that if a testator gives property to i. devisee or legatee, to use or dispose of at his pleasure, that is, to consume or spend, sell or give away, at his pleasure, such devisee or legatee has the fee simple or absolute property, even though his interest in it be called by the will a life estate, and there be a, provision in the will, whereby what may remain of the property at the death of the devisee or legatee is given to another person." It thus appears that a material, essential element of the rule just stated is that where a life estate is expressly given, to convert it into a fee there must be clear power of disposition given to the devisee of the life estate. Without at all assailing the rule above stated, we say that the rule does not apply in this case, does not govern this case. Why? Because Clifford's will does not contain such clear, distinct power in Sarah Clifford to sell.or dispose of the land. That is the touchstone, of this case. Look at the will. It contains no express power. It does not say, as did the will in May v. Joynes that Sarah Clifford should have power to sell or to will or otherwise dispose of the property. There is no such express power found in it. As Judge Poffenbarger said in Bahrens v. Bauman, on page 59 of 66 W. Va., "No power of disposition or consumption is expressly given her. In express terms her estate is defined as one for life." But it is said there is such power given by implication by the words, "after my wife is death that the property if any is left, shall be devided eucely amoung the children." Upon the four words, "if any is left," rests the contention that the life estate is elevated into a fee in the wife, and denying to the children all estate, though the testator has declared that they shall have the property after their mother's death. Thus what the words of the will declare to be a life estate is made a fee simple. Thus a remainder in fee written by the will is made nothing; and this by the magic force of those four words. We would think from the will and from the relation of father to wife and child and from our knowledge of the love of father for his children, that the father's intent was to give the use of the property to his wife for life and remainder, after she had done with it, to the children of his loins. Our knowledge of love of father to wife and child would tell us this. We have right to place this Court in the place of Clifford, having wife and children to provide for. His duty to provide for all. The will does just what we would say he would do. The will to conform to this natural instinct of love; but the construction contended for defeats all this, forgets the children, and vests in the wife, who in her old age did not need it, a large property which she might lose by mismanagement or give away to a second husband or some body else, and leave seven children penniless. Shall we work this result by implication, a dim one at that? And this construction runs counter to a rule of law found in Graham v. Graham, 23 W. Ya. holding "The heir will not be disinherited, unless it is done by the express terms of the will or by necessary implication. The heir being favored in law, there should be no strained construction to work a disinherison, where the words of the will are ambiguous." Those four words in this will are ambiguous, entirely impotent and inconclusive to bring about the construction sought to be given this will. Again I say the appellants rest their case on implication from the clause above quoted, and I repeat that it is not plain enough to work this result. The words of the will, to be conformable to what we would expect from a testator situated as was Clifford, give the widow only a life estate, plainly do this; yet this remainder is to be defeated by those few words. "When implications are allowed, they must be such as are necessary or at least highly probable and not merely possible. In construing a will conjecture must not be...