Sweeney v. Sec. Trust Co..

• Court: West Virginia Supreme Court
• Writing for the Court: WOODS.
• Citation: Sweeney v. Sec. Trust Co.., 180 S.E. 897, 116 W.Va. 344 (W. Va. 1935)
• Decision Date: 04 June 1935
• Docket Number: (No. 7536)
• Parties: Margaret W. Sweeney v. Security Trust Company et al.

116 W.Va. 344

Margaret W. Sweeney

v.Security Trust Company et al.

(No. 7536)

Supreme Court of Appeals of West Virginia.

Submitted April 10, 1935.

Decided June 4, 1935.

1. Wills

The intention of the testator, as derived from the whole will itself, rules its construction.

2. Wills

Although a party, in a suit to construe a will, may succeed in establishing a right to the income from certain property, devised to another, as trustee, for such party's "sole, separate and exclusive use and benefit," her delay in asserting the right to the entire income, and her prior conduct relative thereto, may be sufficient to estop her from laying claim to that portion of the unexpended income which had accrued prior to the institution of her suit.

Appeal from Circuit Court, Ohio County.

Suit by Margaret W. Sweeney against the Security Trust Company and others. From an adverse decree, plaintiff appeals.

Reversed; remanded with directions.

Kenna, Judge, dissenting.

Lee, Blessing & Steed, Lively, Lively & Stambaugh and Brown, Jackson & Knight, for appellant.

James Paull, Jr., Ewing & McGinley, Jay T. McCamic and McCamic & Clarke, for appellees Security Trust Company and W. B. Irvine.

Francis Woodward Young and R. S. Spilman, Sr., for appellees Mary Irwin Young and others.

Edmund Lee Jones, for appellees A. H. Woodward and others.

Woods, Judge:

This suit involves the disposition of unexpended income from a trust estate, established by a will which did not specifically mention such surplus.

Caroline C. Hughes died in 1908 devising all of her property to her executor as trustee to be held in trust "for the sole, separate and exclusive use and benefit of Margaret W. Hervey," granddaughter of the testatrix, and "upon the further trusts and with the further provisions" that the executor should manage the property and if need be re-invest the same as to produce an income, and "devote and apply such income, or so much thereof as may be needed to the maintenance and support of Margaret W. Hervey during her life.'' And, further, that in case Margaret arrived at the age of twenty-one years and married, and the net income "of the property held in trust" under the will should fall below two thousand dollars in any year, the trustee was authorized to give her "a part of the principal, if the same be available and he deem it wise to do so" with the further condition that no more than two thousand dollars of the principal should be thus donated in any year. The testatrix directed that at Margaret's death, "all of the property held in trust under the will" should go to her issue, if any, and if she died without issue, to the brothers and sisters of the testatrix, etc. And, finally, the testatrix declared that "under no circumstances" should the father of Margaret lie placed in charge of the funds provided under the will.

The estate of Mrs. Hughes (after paying her obligations) was appraised at $483,795.34. Margaret was fourteen years old at the death of her grandmother. During Margaret's minority, her wants were not extravagant, and there was a large accumulation of surplus income. She became of age.in 1915, and since then has been paid annually from the income as follows: $5,751.99 in 1916, $5,812.68 in 1917, $10,179.23 in 1918, $12,197.79 in 1919, $15,000.00 a year (under an order of the court) from 1920 to 1924, inclusive, and $30,000.00 a year (under another order of the court) from 1925 to 1930, inclusive. The accumulation of income continued after her majority despite the large appropriations to her. The estate was appraised on December 31, 1930, at $1,445, 864.73, showing an accretion from the income of $962,069.39.

The bill prayed (1) for a construction of the will; (2) that plaintiff be decreed the entire net income derived from the trust; and (3) that the trustees be directed to pay unto plaintiff all of the unexpended accumulations of the income.

Is the beneficiary entitled, under the will, to all of the income from the trust? The defendants say not, basing their position on the theory that the will created two trusts one of the corpus, and the other, accumulated income. They further contend that the plaintiff is limited to such part of the income as may be necessary for her maintenance and support.

The court, having formerly sustained a demurrer to the bill in so far as the same claims an absolute right to all the income of the trust estate, upon consideration of the pleadings (including answers), and the fact that the plaintiff did not desire to amend, nor to prosecute her suit as a mere application for increased allowance, ordered that the bill be, and the same was, dismissed at cost of plaintiff.

A fundamental principle of construction imbedded in the law of this State is that every part of a will shall be given effect if possible, and that no sentence and no word shall be discarded if consistent with a reasonable interpretation. In the instant case, the beneficiary in the trust is also the sole lineal descendant and heir, and, as such, entitled to any property not disposed of by the will. An heir at law as such never takes by act or intention of the testator. His right is independent of the will; and, being favored in law, there should not be a constrained construction to work a disherison. Where there is a doubt, a construction favorable to the heir will be adopted. Barker v. Haner, 111 W. Va 237, 161 S. E. 34; Bartlett v. Patton, 33 W. Va. 79, 10 S. E. 21; Graham v. Graham, 23 W. Va. 36.

The testatrix in the instant case, in the paragraph following the introductory portion of the will, placed all her property, none excluded, in the hands of the executor in trust for the sole, separate and exclusive use and benefit of the plaintiff, and then directed that the same be managed so as to produce an income to be passed on to the plaintiff during her lifetime. Defendants contend that the clause directing the administration of the trust limits the cestui's interest to that portion of the income necessary for her maintenance and support, and in support thereof call attention to the following paragraph of the will which authorized an encroachment upon the principal in certain instances. However, we cannot subscribe to that line of reasoning. The trust set up in the paragraph under discussion is complete in the sense that it passes both the legal and equitable title. The trustee is more than a mere depository. The several parts of the paragraph are so interconnecting and interdependent as to constitute but one trust. Thompson v. Whittaker Iron Co., 41 W. Va. 574, 23 S. E. 795; Carney v. Cain, 40 W. Va. 758, 23 S. E. 650. Such trust was for the "sole, separate and exclusive use" of the plaintiff. The legal title placed in the executor or trustee, invested the plaintiff with the absolute right to have the income therefrom devoted to her "sole, separate and exclusive use." Totten v. Dawson, 104 W. Va. 274, 139 S. E. 858. Such intention is quite apparent from the will as a whole. The testatrix was interested primarily in her infant granddaughter, who was only five years of age at the time of the execution of the will. This granddaughter was her only lineal descendant. She created the trust for the granddaughter alone. And should the income prove to be insufficient in any one year, the trustee might encroach upon a certain portion of the principal which was being held in trust to yield the income.

The only property held in trust for the purposes revealed in the will is the original corpus or principal. This is evidenced by the word "property" used in every other paragraph. In each instance we believe the word "property" must be given the same meaning, namely, the corpus or principal to which the trustee took title under the first depository clause in the will. The authorities are agreed in the Virginias that when the same word occurs more than once in the same will, it ordinarily is to be understood in the same sense. Tomlinson v. Nickell, 24 W. Va. 148; Fairelaim v. Guthrie, 1 Call. (Va.) 7; Gray v. Francis, 139 Va. 350, 124 S. E. 446.

We do not observe one word in the will which indicates an intention to accumulate income, nor from which such intention may be inferred. According, then, to all the rules of interpre- tation, the authorities are united in saying that the language cannot be supplied for such intention. In the recent case of Barker v. Haner, supra, we held that: "When a testator in the disposal of his property overlooks a particular event or matter, which, had it occurred to him, he would have guarded against, the court will not employ or insert the necessary clause for the purpose of supplying the omission.'' In the case of Aldrich v. Aldrich, 43 R. I. 179, 110 Atl. 626, it was affirmed that 1' where property is left in trust by a will, the courts will not infer an intention to accumulate income in the absence of language indicating such an intention." So, in the instant case, the court must assume, in the absence of words showing an intention to accumulate income for the benefit of eventual contingent remaindermen, that testatrix would have used the necessary words to express such intention had it been her purpose. The foregoing cases and the findings and rulings thereon furnish rules of construction applicable to the will in the instant case, and we hold that the income from the trust estate, except as hereinafter determined, should go to the plaintiff.

Suffice it to say that the only reasonable construction that can be put upon the will under consideration, when read in the light of the law governing the construction of wills, as it regards absolute gifts, intestacy, or in any other light, is that the plaintiff herein is entitled to the entire income, except as hereinafter indicated, from the estate either as the beneficiary under the will, or as the only lineal descendant and heir of her foster mother.

Let us look at the amount that Margaret W. Sweeney has already received from the estate in suits brought to receive the...