Weese v. Weese

• Decision Date: 04 April 1950
• Docket Number: No. CC757,CC757
• Citation: 134 W.Va. 233,58 S.E.2d 801
• Court: West Virginia Supreme Court
• Parties: WEESE et al. v. WEESE et al.

Page 801

58 S.E.2d 801

134 W.Va. 233

WEESE et al. v. WEESE et al.

No. CC757.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 31, 1950.

Decided April 4, 1950.

Syllabus by the Court.

1. 'The period prescribed in Code, 41-5-11, relative to filing a bill in equity, is jurisdictional, limiting the right and the remedy.' Point 3, Syllabus McKinley v. Queen, 125 W.Va. 619 .

2. A bill in equity, filed by persons not within the exceptions provided by Code, 41-5-12, attacking an unappealed order of probate of a will by a county court on the ground of fraud in its procurement, cannot be sustained in a suit to impeach such will under Code, 41-5-11, instituted more than two years from the date of such order of probate, for the reason that a court of equity is without jurisdiction to entertain such suit after the expiration of the two year period prescribed by the statute.

James H. Swadley, Jr., Keyser, Emory Tyler, Keyser, for plaintiffs.

Ralph J. Bean, Moorefield, H. G. Muntzing, Moorefield, for defendants.

HAYMOND, Judge.

The plaintiffs, Virgil Weese, Glen E. Weese, Clarice Weese Frantz, Lillie Weese Stewart, Willard Weese and Mernie Weese Groves, children of F. R. Weese, deceased, instituted this suit in the Circuit Court of Grant County against the defendants, Clara Virginia M. Weese, his widow, Norvel Weese and Esta Weese Bergdoll, two of his children, and Evers Bergdoll, administrator of the estate of F. R. Weese, to impeach a will of F. R. Weese, dated July 23, 1927, probated December 6, 1943, to compel the production and cause the probate of another instrument, made and dated in the year 1939, as the true will of F. R. Weese, and to obtain other incidental relief in equity based upon the last mentioned instrument in writing.

The suit was instituted in April, 1948, more than two years after the entry of the order of probate of the 1927 will and, on July 15, 1949, the defendants filed their written demurrer to the bill of complaint. The grounds assigned were: (1) The suit was not instituted within two years from the probate of the will sought to be impeached; (2) the bill of complaint is multifarious; and (3) the misjoinder of Evers Bergdoll, administrator of the estate, as a defendant.

The circuit court, being of the opinion that the first ground was well taken, without passing upon the second ground, sustained the demurrer. With the consent of the plaintiffs, it dismissed the defendant, Evers Bergdoll, as administrator, from the suit after overruling the third ground of demurrer and, on its own motion, by decree entered July 20, 1949, certified to this Court these questions:

1. Is the bill of complaint of the plaintiffs demurrable in which they allege that a will, probated as the will of F. R. Weese, was fraudulently produced for probate by the defendants, and admitted to probate, after a written instrument which the plaintiffs allege is the true last will of F. R. Weese had been fraudulently suppressed or destroyed by the defendants, when it appears that suit to impeach the probated will was not instituted until more than two years after the date of its probate?

2. Is the bill of complaint demurrable as multifarious because the plaintiffs seek to impeach the written instrument probated by the county court as the will of F. R. Weese, to require the production for probate of the written instrument alleged to be his will, to annul a deed made by the widow to Norvel Weese for certain real estate devised to her by the probated will, to require Norvel Weese to reconvey such real estate to her for her life, to require the widow and Norvel Weese to account for timber sold and removed from real estate of F. R. Weese, to restrain them from cutting and removing timber from such real estate, and to obtain a decree declaring the personal property of F. R. Weese in the possession of the widow at her death to be the property of his heirs by reason of the provisions of the written instrument alleged by the plaintiffs to be his true will?

The material facts appear from the bill of complaint and, to the extent that they are properly pleaded, must be accepted as true on demurrer.

The facts, as now stated, appear from the allegations of the bill of complaint. On November 29, 1943, F. R. Weese departed this life in Grant County, leaving surviving him as his children and heirs at law the plaintiffs Virgil Weese, Glen Weese, Clarice Weese Frantz, Lillie Weese Stewart, Willard Weese, and Mernie Weese Groves, and the defendants Norvel Weese and Esta Weese Bergdoll, and his widow, the defendant Clara Virginia M. Weese. At the time of his death F. R. Weese owned and possessed personal property of the appraised value of $7,151.15 and five tracts of land of the appraised value of $9,200, or property of the total appraised value of $16,351.15. On December 6, 1943, a written instrument purporting to be the will of the decedent was produced for probate and probated by the County Court of Grant County and it is now of record in the office of the county clerk of that county. This document is wholly in the handwriting of the decedent and is in these words: 'July 23, 1927. I this day will my wife everything that I have in my possession, in the end of my time, this means money, land, cattle or anything else. Take charge of everything and do as she wants to do with them. F. R. Weese (this will to C. V. M. Weese, my wife).' The widow nominated Evers Bergdoll as administrator under the probated will. He qualified, gave bond as such, proceeded to administer the estate, and filed his final settlement on February 6, 1945.

On February 20, 1947, the defendant, Clara Virginia M. Weese, the widow of the decedent and the beneficiary under the probated will, executed a deed to the defendant, Norvel Weese, for one of the tracts of land and certain personal property owned by the decedent at the time of his death and claimed by her under his will, in which deed she reserved a life estate in the property embraced in the deed.

Shortly after the burial of the decedent, his widow and some of his children and their spouses met at his residence, and at that time the now deceased wife of the defendant Norvel Weese produced a paper which purported to be the will of F. R. Weese. This paper was read to and inspected by the members of the group then present. It was written by F. R. Weese with a pencil, in the year 1939, was entirely in his handwriting, and gave all of his property to his wife, Clara Virginia M. Weese, for life, but made no other disposition of such property, and appointed Evers Bergdoll as executor. The plaintiffs were led to believe, by the defendants Clara Virginia M. Weese, Norvel Weese and Evers Bergdoll, that this written instrument would be and had been produced for probate and probated, and they believed that it had been probated until one of them learned, from a friend in the latter part of 1947, that a deed by Clara Virginia M. Weese to Norvel Weese for a tract of real estate had been made and recorded in the office of the county clerk. Upon the receipt of this information, the plaintiffs made an investigation and to their surprise and amazement found that Clara Virginia M. Weese, Norvel Weese and Evers Bergdoll, with intent to defraud them, had produced for probate and caused to be probated the written instrument dated and executed in 1927, instead of the written instrument made by F. R. Weese in 1939. As soon as the plaintiffs ascertained that the wrong paper had been probated as the will of F. R. Weese, they employed counsel to protect their interests in the estate of the decedent, and instituted this suit in April, 1948.

The defendants Clara Virginia M. Weese and Norvel Weese have cut and sold valuable timber from some of the tracts of land owned by F. R. Weese, and are now engaged in cutting timber on those lands.

After the plaintiffs learned of the deed from Clara Virginia M. Weese to Norvel Weese and that the paper written by F. R. Weese in 1927 had been probated as his will, they or some of them communicated with Clara Virginia M. Weese who then denied that she had any knowledge of any will of the decedent other than that produced for probate and probated as his will. She did state, however, that at the time the paper was read as his will to the group which met after the burial of the decedent she was ill and did not know its contents.

The defendants, Clara Virginia M. Weese and Norvel Weese, however, know of the existence of the paper writing, which should have been probated, and either have it in their possession available for production for probate, or they have maliciously and fraudulently destroyed it in order to defeat the interests of the plaintiffs in the property owned by the decedent at the time of his death.

The prayer of the bill of complaint is that the written instrument probated as the will of F. R. Weese be set aside, annulled and held not to be his will; that the defendants be required to produce and have probated the written instrument made by F. R. Weese in 1939, which was read to the plaintiffs as his will shortly after his burial; that the plaintiffs and the defendants Norvel Weese and Esta Weese Bergdoll be declared to be the owners in fee simple of all the real estate of which F. R. Weese died seized and possessed, subject to its use by the defendant Clara Virginia M. Weese during her natural life; that the deed for real estate made by the defendant Clara Virginia M. Weese to the defendant Norvel Weese be annulled and set aside and that Norvel Weese be required to reconvey such real estate to Clara Virginia M. Weese for her use during her natural life; that it be held that, at her death, such real estate shall be the property of the children of F. R. Weese; that the defendants Clara Virginia M. Weese and Norvel Weese be required to account and pay for all timber sold and removed from any of the lands owned by F. R. Weese at the time of his death; that they be enjoined from...