Totten v. Dawson S.

• Decision Date: 11 October 1927
• Docket Number: (No. 5984)
• Citation: 104 W.Va. 274
• Parties: W. G. L. Totten v. C. A. Dawson et als.
• Court: West Virginia Supreme Court

104 W.Va. 274

W. G. L. Totten

v.C. A. Dawson et als.

(No. 5984)

Supreme Court of Appeals of West Virginia.

Submitted October 4, 1927.

Decided October 11, 1927.

1. Wills Residuary Devise to Testator's Wife, to do With as She Saw Fit, Held to Pass Fee-simple Title (Code, c. 71, § 8).

A paragraph in a will to the effect that "All the rest of my property, real estate, personal and bonds to my wife Emma E. Heavner to do as she sees fit to do with the same" passes a fee simple estate. (p. 275.)

(Wills, 40 Cyc. p. 1580.)

2. Same Under Plain Intention to Devise Fee Simple, Subsequent Paragraph Relating to Disposition of Possible Residuum on Devisee's Death, Held Not to Affect Estate (Code, c. 71, § 8).

Where the plain intention of the testator, as gathered from a consideration of the entire will, was to create such an estate, it will not be defeated by a subsequent paragraph having for its purpose the disposition of a possible residuum on the death of the wife. (p. 277.)

(Wills, 40 Cyc. pp. 1577, 1587.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Appeal from Circuit Court, Upshur County.

Suit by W. G. L. Totten against C. A. Dawson and others for the construction of the will of George T. Heavner, deceased. From a decree construing the will, plaintiff appeals.

Reversed and remanded.

Young & McWhorter, for appellant,

Forman & Mitchell and O'Brien & Hall, for appellees.

Woods, Judge:

A bill was filed in the circuit court of Upshur county by appellant W. G. L. Totten, the only brother of Emma E. Heavner, intestate, for the purpose of ascertaining whether his sister, under the will of her husband, George T. Heavner, deceased, had taken the real and personal property bequeathed absolutely, or only a life estate therein. The sisters of Emma E. Heavner, deceased, or their descendants, together with the "brothers and sisters" of George T. Heavner, deceased, were made parties defendant to the suit, The circuit court found that Emma E. Heavner had taken only a life estate, and proceeded to fix the interests of the several defendants, and directed a partition of the property upon the basis of such finding. Prom this decree the present appeal was taken.

The question presented is: What estate did Emma E. Heavner take under the will? The will contained six short clauses. The first directed the payment of just debts and funeral expenses; the second, third, fourth and fifth, the payment of certain specific bequests; the sixth, after stating that none of the foregoing be paid until eighteen months after the will was admitted to record, provided:

"All the rest of my property, real estate, personal and bonds to my wife, Emma E. Heavner, to do as she sees fit to do with the same.

"The residue of property left at her death is to be one half to my brothers and sisters and their heirs, and the other half to her brothers and sisters and their heirs."

The ultimate question for decision turns upon the construction of the two quoted paragraphs. By the earlier common law it was an established rule that a devise of lands, without words of limitation, conferred upon the devisee an estate for life only. An exception was soon recognized in the case of a will so that an estate in fee could be given without the use of the technical words required in a conveyance or deed. The gift in such case was known as an executory devise. Modern legislation has largely abolished the former rule, so that words of inheritance or perpetuity are no longer necessary to devise a fee. Ordinarily, however, the technical signification of words and technical rules must yield to the obvious intent of the testator as gathered from the instrument as a whole. All rules are designed for that purpose. Coach v. Eastham, 69 W. Va. 710. Rules of construction have their legitimate function when they are needed to understand the purpose intended to be embodied in the language used in the will. They take hold only where uncertainty commences and let go where it ends, and cannot control or vary the intent.

It is a well settled doctrine of the law, sustained by all the authorities, that where an estate is given to a person generally or indefinitely, with power of disposition, such gift carries the entire estate; and the devisee or legatee takes, not a simple power, but the property absolutely. While a different rule prevails in many jurisdictions in cases where property is given expressly for life with power of disposing of the reversion annexed the first taker having but an estate for life with the super-added power this Court has gone to the extent of declaring that where such power may be exercised in any way the devisee may choose, he enjoys all the rights of fee simple ownership, and must be decreed to be vested with the fee simple title. Surety Company v. Jarrett, 95 W. Va. 423, and cases there cited.

Was the estate in the instant case given generally or indefinitely, with power of disposition? If so, such gift carries the entire estate. In the will before us we have a residuary clause covering by its terms the whole of the testator's estate not disposed of by antecedent provisions: "All the rest of my property, real estate, personal and bonds to my wife." If it was intended that the wife should enjoy a life estate only in the residuum, the testator failed to use express words to effect such a purpose. The phrase, "to do as she sees fit to do with the same", likewise, when unqualified, implies complete dominion. In the absence of any qualifications or restrictions it includes every incident of absolute ownership. The wife was empowered thereunder to deal in an absolute and unrestricted manner with the property given. Omitting the last quoted expression, the paragraph reads: "All the rest of my property, real estate, personal and bonds to my wife." That of itself unquestionably was sufficient to pass absolute title to all the property to which it applied. But does the addition of the...