Wheeling Dollar Sav. & Trust Co. v. Stewart
| Decision Date | 23 March 1946 |
| Docket Number | 9778. |
| Citation | 37 S.E.2d 563,128 W.Va. 703 |
| Parties | WHEELING DOLLAR SAVINGS & TRUST CO. v. STEWART et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. In the absence of an intention to do so, explicitly set forth in a will creating a trust for a named beneficiary, or clearly shown by circumstances surrounding its execution, the terms 'descendant', 'descendants' 'direct descendants', and words equivalent thereto do not include children adopted by the beneficiary of such trust.
2. Ordinarily a will takes effect as of the date of testator's death, but if the language thereof shows that the testator intended that a testamentary disposition therein made should be effective at a different date, the intention of testator controls, if no positive rule of law is thereby violated.
3. A bequest of property to be held in trust for the benefit of the only daughter of the testator and her direct descendants during her life and until all her descendants reach the age of twenty-one years, or die before reaching such age, and providing that in the event said daughter should die without descendants that the principal of said property and all undistributed income should go to testator's next of kin vests a life estate in the daughter. Upon her death without a descendant or descendants, the said principal and income go to testator's next of kin, and the persons comprising such class are to be determined as of the date of the daughter's death.
C. Lee Spillers, Russell B. Goodwin, and Goodwin, Nesbitt & Spillers, all of Wheeling, for appellants.
Tom B. Foulk, of Wheeling, for appellees.
The purpose of this suit is to construe the will of Andrew S. Hare, and upon construction thereof to resolve a controversy between two groups of claimants, the first consisting of the husband and adopted children of his deceased daughter, and the second consisting of his sister, nieces, nephews, and grandnephews.
Wheeling Dollar Savings & Trust Company, Trustee under the will of Andrew S. Hare, filed its bill of complaint against James K. Stewart, Ellen Wallace Stewart, infant, and Nancy Kennedy Stewart, infant, Edgar S. Hare, Mary E. Hare, Jane T. Hare, John T. Hare, William H. Hare, John E. Hare, Francis A. Hare, and Blanche Hare Wheeler. Subsequently an amended bill was filed making Wheeler Dollar Savings & Trust Company, executor of the will of Nancy Hare Stewart, a defendant. After a hearing on the pleadings and evidence, in which no disputed facts were developed, the trial chancellor decreed that Ellen Wallace Stewart and Nancy Kennedy Stewart, adopted children of James K. Stewart and his deceased wife, Nancy H. Stewart, are not included within the terms 'descendant', 'descendants', and 'direct descendants', and similar terms as used in the will of Andrew S. Hare, and that the said adopted children take nothing under his will. It was also decreed that the persons constituting the class designated as 'next of kin' of Andrew S. Hare, in his will, are to be determined as of February 5, 1944, the date of the death of said Nancy H. Stewart, and that the sister, nieces, nephews, and grandnephews of the said Andrew S. Hare take the remainder interest in the property held in trust under paragraph third of said will, including additions and accretions thereto, the sister taking one-half, the nieces and nephews one-tenth each, and the grandnephews one-thirtieth each.
The husband and adopted daughters of Nancy H. Stewart will be hereinafter designated 'appellants', and the sister, nieces, nephews and grandnephews of Andrew S. Hare will hereinafter be referred to as 'appellees'. The corporate plaintiff, as trustee of the Andrew S. Hare estate and also as executor of the estate of Nancy H. Stewart, makes no complaint of the final decree, presumably because its interest in the controversy is formal.
Under date of February 4, 1925, Andrew S. Hare, a widower, executed his last will and testament, consisting of fifteen paragraphs. By the third paragraph of his will and a codicil thereto, he bequeathed to Dollar Savings & Trust Company, as trustee, moneys and securities amounting to two hundred and fifty thousand dollars 'to be held in trust for the benefit of my daughter Nancy McHenry Hare and of her direct descendants'. The bequest was made 'in order to guard against the possibility of their ever being in want'. The testator stated that he deemed 'the property which my said daughter will have when she becomes of age sufficient for her needs and requirements'. It is further provided that
No bequests or devises made in other parts of the will and codicil hereinafter mentioned are in controversy, and such parts of the will and codicil are considered by us for the sole purpose of ascertaining from the entire will the intent of the testator. For such purpose the fourteenth paragraph of the will is quoted: Wheeling Dollar Savings & Trust Company is the successor of Dollar Savings & Trust Company by merger. It is to be noted that in other provisions of Andrew S. Hare's will and codicil, the other trust funds thereby established were to become a part of the trust fund created by paragraph third of his will upon attainment of the objects of the other trusts.
On the 18th day of October, 1926, Nancy M. Hare, daughter of testator, executed a trust agreement by which she transferred to Andrew S. Hare, her father, as trustee, certain personal property, making provision therein that if she should be survived by any child or children born to her or legally adopted by her, the income received after her death should be paid to or for the benefit of such child or children.
In less than three months after the execution of the trust agreement, the codicil to Andrew S. Hare's will was executed, adding fifty thousand dollars to the trust fund created by paragraph third, and making other changes in the will not necessary to be here stated.
Andrew S. Hare died December 13, 1928. His daughter, aged twenty-three, was then unmarried, and remained single until 1931, when she was married to James K. Stewart. Ellen Wallace Stewart, infant appellant, was adopted by James K. Stewart and Nancy H. Stewart, on December 23, 1936, and on February 16, 1940, they adopted Nancy Kennedy Stewart, the other infant appellant.
Three sisters of testator, Martha J. Hare, Mary E. Hare and Sarah E. Hare, for whom testator provided in his will, died without issue on November 14, 1933, December 31, 1934, and September 24, 1942, respectively. The testator was also survived by a sister, Blanche Hare Wheeler, who is now living. A brother of testator predeceased him, and the descendants of said brother, two nieces, two nephews and three grandnephews, are now alive. Nancy H. Stewart, testator's only child died February 5, 1944, leaving a will, by which she devised and bequeathed her estate to her husband, James K. Stewart.
Two questions are presented by the pleadings and proof herein: (1) Are the adopted daughters of Nancy H. Stewart and her husband descendants or direct descendants, within the meaning of such or similar terms used in the will of Andrew S. Hare; and (2) are the persons who constitute the class designated as 'next of kin' in the will of Andrew S. Hare to be determined as of the date of his death, or as of the date of the termination of the trust created by paragraph third of his will? The trial chancellor answered the first question in the negative, and held that the next of kin was to be determined as of February 5, 1944, the date of Nancy H. Stewart's death, the trust ending on that date.
We are here called upon to construe a will of some length, and containing involved provisions. The paucity of rules of general application to the construction of wills and the reasons therefore are well stated by Judge Story in his opinion in the case of Sisson v. Seabury, C.C., Fed. Cas. No 12, 913, 1 Sumn. 235, 239 et seq. ...
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