Suter v. Suter

• Decision Date: 21 February 1911
• Citation: 70 S.E. 705,68 W.Va. 690
• Parties: SUTER v. SUTER et al.
• Court: West Virginia Supreme Court

70 S.E. 705

68 W.Va. 690

SUTER v. SUTER et al.

Supreme Court of Appeals of West Virginia.

February 21, 1911

Submitted June 5, 1909.

Syllabus by the Court.

The law favors the vesting of estates. Though a devise be clearly conditional, the condition will be construed, when possible as a condition subsequent, so as to confer an immediately vested estate subject to be divested on the happening of the contingency.

A marriage may be proved by circumstances, reputation, conduct of parties and cohabitation, and a presumption of marriage arising from cohabitation apparently matrimonial, especially where the legitimacy of a child is involved, is so strong that it may be overcome only by cogent proof on the part of him who alleges the illegitimacy.

A guardian may maintain a suit for partition on behalf of his ward.

Appeal from Circuit Court, Marshall County.

Bill by Jennie V. Suter, guardian of Gertrude W. Suter, against Jennie V. Suter, Norman Suter, and others. From the decree defendant Norman Suter appeals. Affirmed.

J. M Ritz and T. S. Riley, for appellant.

Martin Brown, for appellee.

ROBINSON J.

William Suter died, testate, in the year 1890, seized and possessed of about one hundred acres of valuable land. He devised all this land and other property to his widow for the period of her life. The will further provided: "At the death of my said wife I bequeath and devise said property or what remains thereof to my sons Albert Suters, Norman Suters, and William G. Suters on the following Conditions: that is to say: (The conditions set forth here are that legacies of $300 each shall be paid by the devisees to other children of the testator at periods specified, extending from three years after the death of the wife to ten and one-half years thereafter.) Now be it remembered that if from any cause whatsoever either two or even either one of my said sons shall make the aforesaid payments in case the other one or other two, shall fail then and in that case the one or two that makes said payments shall be the possessor or possessors of said property, provided he or they shall pay to the one or ones who fail to make their equal proportion of said payments the sum of three hundred dollars each at the expiration of twelve years from the death of my said wife."

Albert Suter, named as a devisee in the will, died in 1893. By a will he devised: "That the interest in my father's real estate including mill shall go to Norman Suter and William Suter my half brothers they paying to the heirs of my father the money which shall fall due them by the provisions of my father's will." In another clause he directed that Norman and William Suter should pay specified sums of money at stated times to certain heirs of his father in addition to the sums directed to be paid by his father's will.

William G. Suter, devisee under the will of William Suter, the elder and under the will of his half brother Albert, died in the year 1899, intestate.

The widow of William Suter, the elder, died in the year 1905. At her death of course the life estate in the land ended. This suit is one for a partition of the land. It was instituted after the death of the widow and life tenant, on behalf of an infant, Gertrude W. Suter, alleged to be the sole heir of William G. Suter, who, as we have observed, was a devisee of an interest in the land. The plaintiff in the suit is the regularly appointed guardian of that infant. The guardian claims for her ward one-half of the land, asks that the tract be equally partitioned between Gertrude W. Suter and Norman Suter, and shows a readiness to comply with the conditions imposed on the ownership.

The right of this infant to ownership in the land and partition thereof is strongly contested by Norman Suter. By his answer he invokes a construction of the will entitling him to the tract as a whole; and, in any event, he denies that Gertrude W. Suter is the legitimate child and heir of his deceased brother, William G. Suter. Further, he insists that a suit for partition in favor of an infant cannot be maintained by its guardian. The circuit court held that the land should be partitioned equally between Norman Suter and the heir of William G. Suter, subject to the payments which the testator, William Suter, directed to be made by those to whom it should ultimately go. From the decree, Norman Suter has obtained an appeal.

Logically the first question is: Who owns the land under the terms of the will and the circumstances that have followed the devise? A proper construction of the will is, that the land vested in the three brothers at the death of William Suter, the testator, subject to the life estate and the respective rights of these devisees to elect, at the termination of the life estate, to hold the land burdened with the obligations for the payments directed to be made by those who ultimately take it. The land vested in these three devisees at once upon the testator's death, subject to a condition...