Weiss v. Soto

Citation142 W.Va. 783,98 S.E.2d 727
Decision Date11 June 1957
Docket NumberNo. 10870,10870
CourtSupreme Court of West Virginia
PartiesHelena Schwertfeger WEISS, Executrix of the Will of Lena Schwertfeger, Deceased, v. Joseph S. SOTO, State Tax Commissioner, et al.

Syllabus by the Court.

1. Extrinsic evidence to establish the intention of a testator in the disposition of his estate is admissible only when there is a latent ambiguity in the will.

2. 'When a case is tried by a court in lieu of a jury, it is not an error, for which the appellate court will reverse, to hear illegal testimony, if there be enough legal testimony to justify the judgment.' Point 1, syllabus, Abrahams v. Swann, 18 W.Va. 274.

3. Extrinsic evidence of any facts known to the testator which may reasonably be supposed to have influenced him in the disposition of his property, and of all the surrounding circumstances when he made the will, is admissible to place the court, as nearly as practicable, in the position of the testator when he made his will as an aid in ascertaining its true construction.

4. The paramount rule in construing a will is that the intention of the testator controls and must be given effect, unless that intention violates some positive rule of law or public policy.

5. In ascertaining the intention of the testator, the entire will should be considered.

6. The true inquiry in the construction of a will is not what the testator meant to express but what the words he has used do express.

7. In construing a will the intention must be ascertained from the words used by the testator, considered in the light of the language of the entire will and the circumstances surrounding the testator when he made his will.

8. In the construction of a will technical words are presumed to have been used in a technical sense and should ordinarily be given their strict meaning; but this rule is not absolute and when it appears from the context that another meaning was intended such words will not be applied in their technical sense.

9. A residuary clause of a holographic will that 'I, devise and bequeath unto my beloved wife Lena Schwertfeger, all of the rest and residue of my real and personal property wherever the same my be situated, absolutely in fee simple, and after the death of my said Dear wife, the rest and residue of my real and personal property shall be devided between my said three daughters share and share a like.', considered and construed in the light of the language of the entire will and the circumstances surrounding the testator when he made the will, as an aid in ascertaining the intention of the testator, creates a life estate in the wife with a remainder in fee simple in the three daughters in equal shares in the residue of the real and personal estate of the testator at the time of his death.

W. W. Barron, Atty. Gen., Giles D. H. Snyder, Asst. Atty. Gen., for plaintiff in error.

Schmidt, Hugus & Laas, Henry S. Schrader, Wheeling, for defendant in error.

HAYMOND, Judge.

This is a statutory appeal, under Section 21, Article 11, Chapter 11, Code, 1931, as amended, from an assessment by the state tax commissioner on February 21, 1955, of an inheritance tax of $43,642.61 against the estate of Lena Schwertfeger, who died testate in Wheeling, Ohio County, West Virginia, December 18, 1952. The plaintiff in the proceeding on appeal is Helena Schwertfeger Weiss, Executrix of the will of Lena Schwertfeger and the principal defendants are Joseph S. Soto, state tax commissioner, and Helena Schwertfeger Weiss, Amelia Schwertfeger Stamp, and Marie Schwertfeger Aul, the three daughters and residuary beneficiaries under the will of Lena Schwertfeger.

On the appeal to the Circuit Court of Ohio County that court, upon the petition of the plaintiff, the separate answers of the state tax commissioner and the three daughters of the testatrix, in which each daughter challenges the assessment as erroneous, and upon certain facts presented as evidence by written stipulations of the attorneys for the respective parties, by final order entered September 11, 1955, held the assessment of $43,642.61 to be erroneous. From that order this Court granted this writ of error on January 28, 1957, upon the application of the state tax commissioner. On April 30, 1957, the case was submitted for decision upon the motion of the plaintiff to affirm the judgment of the circuit court and the oral arguments and the briefs of the attorneys for the respective parties.

The controlling question presented is whether, under the provisions of the holographic will of F. C. H. Schwertfeger, Lena Schwertfeger, his wife, was given a fee simple estate or a life estate with a remainder to his three daughters in the property disposed of in the residuary clause of the will.

The defendant, state tax commissioner, assigns as error the action of the circuit court (1) in admitting evidence relating to the circumstances existing when the husband's will was made and the construction of his will by interested parties between the time of his death in 1910 and the death of his wife in 1952; (2) in holding that the wife received only a life estate under the will of the husband; and (3) in holding erroneous the tax assessment of $43,642.61 because the assets of the estate of the husband were included in the estate of the wife in assessing the tax.

There is no dispute among the beneficiaries concerning the estate created by the residuary clause of the will of the husband and the sole controversy involved in this proceeding is between the beneficiaries and the state tax commissioner concerning the validity of the assessment of the tax.

The principal evidence offered and introduced consists of facts embraced in two written stipulations of the attorneys for the respective parties in which they agree that such facts are true. The state tax commissioner contends, however, that all facts relating to the pertinent conditions existing when the husband made his will, the conduct of the beneficiaries after his death, and the construction of the will by them between the time of his death and the death of his wife, contained in the stipulations, are not admissible as evidence because they constitute parol evidence to contradict, add to, detract from, vary or explain the plain and unambiguous terms of the residuary clause of the will; and he objected to the introduction of such facts in evidence on that ground. The circuit court overruled the objection and admitted all such facts as evidence.

F. C. H. Schwertfeger died testate July 18, 1910, in Ohio County, West Virginia. His will, which was dated February 22, 1908, and was duly probated in that county July 29, 1910, was personally designed and prepared by him apparently without advice or assistance from anyone skilled or experienced in the preparation of wills. It contains seven numbered paragraphs. Paragraph 1 appoints his wife executrix of the will with the request that no security be required of her. Paragraph 2 directs her to pay all just debts and funeral expenses. Paragraph 3 devises to Amelia Schwertfeger Stamp, a daughter, a parcel of improved real estate absolutely in fee simple and bequeaths to her fifteen thousand dollars. Paragraph 4 devises to Mary Schwertfeger Aul, another daughter, a parcel of improved real estate absolutely in fee simple and bequeaths to her fifteen thousand dollars. Paragraph 5 devises to Helena Schwertfeger Weiss, another daughter, a parcel of improved real estate and bequeaths to her fifteen thousand dollars. Paragraph 6 bequeaths to the Trustees of the German Zions Lutheran Church of Wheeling two thousand dollars to be held as an endowment fund for that church. Paragraph 7, the meaning and effect of which must be determined in this proceeding, is expressed in this language:

'I, devise and bequeath unto my beloved wife Lena Schwertfeger, all of the rest and residue of my real and personal property wherever the same my be situated, absolutely in fee simple, and after the death of my said Dear wife, the rest and residue of my real and personal property shall be devided between my said three daughters share and share a like.'

Lena Schwertfeger, the wife of F. C. H. Schwertfeger, qualified as executrix of his will and acted in that capacity until May 14, 1948 when she resigned because of infirmities attendant upon her advanced age of ninety nine years at the time of her resignation. In administering the estate of her husband under his will she and her successor kept the assets of the husband separate from the property of the wife who used only a part of the income from his estate and disposed of or consumed little, if any, of the corpus. When the wife died on December 18, 1952, at the age of 103 years, the amount of the unused and undistributed income from the estate of the husband was $212,213.95, the appraised value of her separate estate was $98,781.69, and the value of the assets of the husband's estate, which consisted principally of stocks and bonds, had appreciated from the original appraised value of $323,422.29 and the book value fixed by him of $592,728.53 to the subsequently appraised value of $1,099,935.73.

An inheritance tax, based on the original appraised value of the wife's estate of $98,781.69, was paid; and an inheritance tax, based on the original appraised value of $323,422.29, or the book value of $592,728.53, of the husband's estate was likewise paid. The specific bequests in the will of the husband and the specific bequests in the will of the wife were paid and the assets covered by the residuary clause in each will were distributed to the three daughters in equal shares in the belief that the wife received only a life estate in such assets under the will of the husband. All these transactions occurred before the assessment involved in this proceeding was made by the state tax commissioner and, except for pending inheritance tax claims, both estates have...

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