Welsh v. Welsh, 10354

• Decision Date: 19 February 1952
• Docket Number: No. 10354,10354
• Citation: 69 S.E.2d 34,136 W.Va. 914
• Court: West Virginia Supreme Court
• Parties: WELSH, v. WELSH et al.

Page 34

69 S.E.2d 34

136 W.Va. 914

WELSH, v. WELSH et al.

No. 10354.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 15, 1952.

Decided Feb. 19, 1952.

Syllabus by the Court.

1. Dower may be barred by a postnuptial marriage contract, but intent of the parties to bar dower must clearly appear from the language of the contract, or be necessarily implied.

2. Where renunciation of a will is made by a widow she is entitled to receive one-third of the personal estate of the decedent remaining after payment of funeral expenses, costs of administration and debts.

3. It is the duty of a domiliciary personal representative to administer the entire personal estate of a decedent, wherever located, if the best interest of the estate so demands.

4. Where it appears that a domiciliary personal representative fails or refuses to perform his clear duty of attempting to recover possession of personal property without the jurisdiction of the state wherein he was appointed, the property being claimed by a resident of the state wherein the property is located, the personal respresentative should be removed from office and another person appointed in his stead by the court having supervision over the administration of the estate.

Robinson & Stump, John S. Stump, Jr., and Harvey W. Harmer, all of Clarksburg, for appellant.

Deem & Marstiller, Fred B. Deem, and James A. Marstiller, all of Clarksburg, for appellee.

GIVEN, Judge.

This appeal involves the right of a widow to renounce the will of her deceased husband, pursuant to the provisions of Code, 42-3-1, and to receive in lieu of the property devised or bequeathed to her by the will dower in the real estate and a distributive share of the personal property of the estate of decedent. The only contention made against her right to renounce the will is grounded upon a marriage settlement contract entered into by the parties. George H. Welsh, in his own right, and as executor of the estate, appellant, contends that the marriage contract was executed prior to the marriage, that the marriage constituted a sufficient consideration therefor, and that a proper construction thereof precludes the right of the widow, appellee, to renounce the will. The lower court decreed that the contract 'was, in fact and in law, a post-nuptial contract; and that said contract does not bar the plaintiff of her distributive and dower rights in and to the estate of said deceased husband', and directed the executor of the estate to 'forthwith pay and distribute unto the plaintiff, Bessie G. Welsh, widow of Thomas F. Welsh, one-third (1/3) of the personal property now in his control and possession for distribution as such executor', and that the executor 'do further pay unto said Bessie G. Welsh one-third (1/3) of all the personal property coming into his hands hereafter in and from the administration of said decedent's estate.'

The testator, Thomas F. Welsh, died about May 6, 1944, at the age of eighty four years. He and the appellee, whose maiden name was Bessie G. Barrett, were married on March 27, 1932. The children of Thomas F. Welsh named in this proceeding, were of a former marriage, Thomas F. Welsh having been divorced from his first wife about ten years prior to the time of his marriage to Bessie G. Barrett. He then owned and managed a lumber business at Grafton, West Virginia, and Bessie G. Barrett had performed the duties of secretary for that business for approximately twenty years. They continued to operate the lumber business until the time of his retirement, several years later. After his retirement she continued to assist him with the management of his property and business affairs. There is no evidence of any marital difficulty between Thomas F. Welsh and appellee, although, as seems not unusual in such cases, some of the children by his first marriage apparently resented his second marriage, but not to the extent of entertaining any permanent ill feeling toward the father. The evidence clearly shows that the wife was a faithful companion and attendant to Thomas F. Welsh during his declining years.

The marriage settlement contract, together with the certificate of the notary of the acknowledgment thereof, are set out in full:

'Grafton, W. Va., March 25, 1932.

'This Contract entered into this the above date between Thos. F. Welsh & Bessie G. Barrett parties to said contract and both of Grafton, W. Va. Witnesseth:

'That whereas said parties to this Contract have agreed to enter into the Bonds of Matrimony and thus become Man & Wife, this Contract is provided for the regulation of the private and personal business of each as well as their married lives.

'First: That each party to this contract is to have the right to their own personal Bank Account to be handled in their own name which shall not be in any manner interfered with by the other. Also that no business obligations of any consequence shall be entered into by either party without the written consent of the other party to this contract. Each to pay their own personal obligations.

'Second: The Lumber Business, in which Thos. F. Welsh has been engaged in, assisted by Bessie G. Barrett, is to be continued as heretofore with the following modifications; Bessie G. Barrett is to assist in this work as before with such help as her time from the home will permit. From the receipts of such business, Thos. F. Welsh is to pay all expenses of such business, all expenses of the incidentals of their home. After which a division, if any, remaining receipts from such business is to be equally divided at the end of each year. But it is herein understood that Thos. F. Welsh shall operate this business in the same capacity as before marriage and the consummation of this contract. Receipts, if any, so checked to be final.

'Third: In consideration of the sum of Twelve Thousand Dollars received by Bessie G. Barrett from Thos. F. Welsh in her own personal use, and exclusive of Three Thousand Dollars so received which is now used and to be used in the purchased of and furnishing of their Home in Clarksburg, she agrees by this contract that Thos. F. Welsh to handle his business, deal and transfer property, both personal and Real in exactly the same manner and with same rights as before their marriage and the consummation of this contract, including the Residence in Clarksburg.

'Fourth: In the event of the Death of said Thos. F. Welsh before his wife, (Bessie G. Barrett) she is to have the undisturbed use of their home during her life or so long as she remains his widow, after which time it is to revert to the estate of said Thos. F. Welsh.

'Fifth: The conditions of this contract are made for the regulations of the business in the lives of both parties during their lives or the life of eaither in their relations as Husband and Wife, Therefore nothing herein shall be construed to modify or alter in any manner the Wills or Testament of either party to this contract.

'/s/ Thos. F. Welsh.

'/s/ Bessie G. Barrett Welsh

Nov. 12, 1932

'Clarksburg, W. Va.

'Harrison County, to-wit:

'This day appeared before me in my said county, Thos. F. Welsh, and BessieG.

Welsh, his wife, who acknowledges the above signatures to be their own.

'Robt. McClung,

Notary Public.'

'My commission expires Sept. 24, 1935.'

It will be observed that the contract was dated two days before the marriage of Thomas F. Welsh to Bessie G. Barrett, and that certain recitals therein indicate strongly that it was prepared prior to the marriage. It will also be observed, however, that appellee signed the contract in her married name, that the certificate of acknowledgment bears date November 12, 1932, months subsequent to the marriage, that appellee acknowledged the contract in her married name, and that the notary certified appellee to have been the wife of Thomas F. Welsh. From these facts we believe the circuit court correctly found that the contract was executed and delivered after the marriage. In reaching this conclusion we are not unmindful of the rebuttable presumption that the instrument is presumed to have been executed and delivered as of its date. See Hawley v. Levy, 99 W.Va. 335, 128 S.E. 735. Neither have we failed to consider the fact that the acknowledgment of the instrument here involved was unnecessary to its validity. We think the question of whether the marriage settlement contract is to be considered as being antenuptial or postnuptial can be of little significance, however, in view of our construction of the contract. We are of the opinion that the provisions of the contract do not preclude the widow from renouncing the will.

It is well established in West Virginia that marital rights of one spouse in the property of the other may be released or barred by agreement. Coatney v. Hopkins, 14 W.Va. 338; Beard v. Beard, 22 W.Va. 130; Hinkle v. Hinkle, 34 W.Va. 142, 11 S.E. 993; Beverlin v. Casto, 62 W.Va. 158, 57 S.E. 411; Bramer v. Bramer, 84 W.Va. 168, 99 S.E. 329. But to bar such rights the intent to do so must be 'clearly manifested by the plain words of the instrument or by necessary implication therefrom.' Part Point 3, syllabus, Bramer v. Bramer, supra. Beard v. Beard, supra; Hinkle v. Hinkle, supra; Coatney v. Hopkins, supra; 6 M. J., Dower, Section 51. The rule applies to either antenuptial or postnuptial agreements. Beard v. Beard, supra; Hinkle v. Hinkle, supra; Bramer v. Bramer, supra; Chambers v. Pierce, 94 W.Va. 766, 120 S.E. 912.

The right of dower existed at common law, and has always been a favorite of the law. In 28 C.J.S., Dower, § 6, the author says:

'The object in allowing dower is to furnish means and sustenance for the wife and for the nurture and education of the younger children after the death of the husband and father, and looking to this object dower is held sacred and has been strongly fortified against invasion. It is a legal, an equitable, and a moral right, favored in a high degree by the law, and whether it is claimed by a suit...