Wheeling Dollar Savings & Trust Co. v. Leedy, 13498

• Decision Date: 24 June 1975
• Docket Number: No. 13498,13498
• Citation: 216 S.E.2d 560,158 W.Va. 926
• Court: West Virginia Supreme Court
• Parties: WHEELING DOLLAR SAVINGS & TRUST CO., etc. v. Lydia Speidel LEEDY.

Page 560

216 S.E.2d 560

158 W.Va. 926

WHEELING DOLLAR SAVINGS & TRUST CO., etc. v. Lydia Speidel LEEDY.

No. 13498.

Supreme Court of Appeals of West Virginia.

June 24, 1975.

Syllabus by the Court

1. '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.' Syllabus point 4., Weiss v. Soto, 142 W.Va. 783, 98 S.E.2d 727 (1957).

2. '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.' Syllabus point 7., Weiss v. Soto, 142 W.Va. 783, 98 S.E.2d 727 (1957).

3. Where a will made after January 1, 1931 provides for a limitation over by way of remainder and, expressly or by implication, also provides that the first taker of the testator's property may use or dispose of such property absolutely, the limitation over shall not fail or be defeated except to the extent that the first taker shall have lawfully exercised the power of disposal. Accordingly, a life tenant or beneficiary with an appendant power of disposal takes something less than a fee simple absolute upon the death of a testator.

4. Where the express terms of a will limits a beneficiary to a life estate and provides for absolute vesting in remainders, the burden is on the life beneficiary to demonstrate that the testator appended a power of disposition permitting consumption of the estate in favor of the life tenant.

5. A court should not construe the language of a will as reposing in a life tenant or beneficiary a power to alienate or dispose of property, unless the power of disposal is unlimited, unqualified and unmodified.

6. 'The services of an attorney cannot be rewarded by fees paid out of an estate where such attorney has represented litigants who sought to recover funds from an estate in a purely adversary capacity.' Syllabus point 3., Security National Bank & Trust Co. v. Willim, 153 W.Va. 299, 168 S.E.2d 555 (1969).

7. 'Where objections were not shown to have been made in the trial court, and the matters concerned were not jurisdictional in character, such objections will not be considered on appeal.' Syllabus point 1., State Road Commission v. Ferguson, 148 W.Va. 742, 137 S.E.2d 206 (1964).

Riley & Yahn, Arch W. Riley, Greg L. Cooey, Howard W. Friedrichs, Wheeling, for appellant.

Phillips, Holden & Marshall, John D. Phillips, David B. Holden, Wheeling, for Wheeling Dollar.

Galbraith, Seibert & Kasserman, George H. Seibert, Jr., James E. Seibert, Wheeling, for Ohio Valley Gen. Hosp.

HADEN, Chief Justice:

This is an appeal by Lydia Speidel Leedy from a final order of the Circuit Court of Ohio County in a declaratory judgment action brought by Wheeling Dollar Savings & Trust Co., trustee, under a trust created by the last will and testament of Hal Speidel, deceased. The final order complained of held that the trust created by Item Fifth of the Hal Speidel Will prohibited the invasion or take-down of the corpus of the trust at the request of and for the benefit of the appellant, Lydia Speidel Leedy, life beneficiary of the trust.

Hal Speidel, a resident of Ohio County, died March 7, 1931, and disposed of his property by a last will and testament dated January 30, 1931. The decedent was survived by his widow, Gertrude L. Speidel, who has since died, and a daughter, Lydia Speidel, now Lydia Speidel Leedy, a childless person.

The will bequeathed one-third of the testator's estate outright to his widow, Gertrude L. Speidel. The will also made a specific bequest of $2,000.00 to a church in Wheeling. The fourth item of the will expressed the desire of the testator that his co-executrices, the widow and the daughter, appellant herein, continue the support of two collateral relatives of the testator. The amount of such support was committed to the sound judgment of the co-executrices.

Item Fifth of the will established a trust disposing of the residue of the testator's estate. The trust language of this residuary clause furnished the basis for the litigation resulting in this appeal. Item Fifth provides as follows:

'Fifth: All of the rest, residue and remainder of my estate, whether real, personal or mixed property, I give, devise and bequeath to the Dollar Savings and Trust Company of the City of Wheeling, State of West Virginia, (now known as Wheeling Dollar Savings & Trust Company) as trustee, to be held in trust for and on behalf of my daughter, Lydia Speidel, upon the following conditions, to-wit:

The income of the said part of my estate so placed in trust for the benefit of my said daughter shall be paid at stated intervals of six months to my said daughter, during the term of her natural life. And I hereby authorize and empower the said trustee to sell, convey, assign or transfer at any time during the existence of the trust so created, any part of the trust property as the interests of the trust or the advantages of my said daughter may seem to require. And I further authorize and empower the said trustee to make such investments of the said trust estate or any part thereof, as the said trustee may deem proper and to the best interest of my said daughter. In case my said daughter shall die leaving a child or children, then the said trust estate hereby created shall be and become the absolute estate and property of the said child or children, to be divided equally, share and share alike, if there be more than one, when the youngest child of my daughter reaches the age of twenty-one years; and in case my said daughter dies without leaving issue, or in case no child of hers reaches the age of twenty-one years, then all the rest, residue and remainder of said trust estate existing at the time of her death shall pass to and become the absolute property of the Ohio Valley General Hopsital of Wheeling, West Virginia, to constitute an endowment fund in the name of and in memory of my father, Joseph Speidel, and my mother Lydia Speidel, and the income of which shall be used and applied by the trustees of said hospital, wholly, for the care and treatment of indigent and poor patients confined and being treated in what is known as the free or charity wards.'

Until 1971, the trustee paid all of the net income of the trust created by this item of the testator's will at regular intervals to Lydia Speidel Leedy. Conversely, the trustee never has paid over or distributed any of the principal of the trust estate to Mrs. Leedy.

Believing that the residuary clause of the will permitted her access to the corpus of the trust estate, Mrs. Leedy requested that the trustee distribute the principal of the trust to her. The trustee refused, maintaining it did not have the power under the will to make any principal distributions to Mrs. Leedy, in that she was a life tenant merely, and entitled to income only from the trust corpus. Mrs. Leedy then requested the trustee to institute the declaratory judgment action resulting in this appeal so as to secure a construction of the will and a resolution of alleged ambiguities contained in Item Fifth of the will. At Mrs. Leedy's request, the trustee instituted the declaratory judgment action, but, nevertheless, maintained that the will was not ambiguous.

After making certain findings concerning the will, the trial court determined the testator's intent from the whole will was that the trustee had no power under Item Fifth to invade the principal of the trust for the benefit of, or to distribute the principal to the appellant, Lydia Speidel Leedy. In the action below, the alternative beneficiary, the Ohio Valley General Hospital Association, appeared and defended its inchoate interest and that of the trust estate in preserving the corpus of the trust.

Upon motion by all parties for reasonable attorneys' fees in the prosecution and defense of the declaratory judgment action, the court denied attorney fees to the appellant, Lydia Speidel Leedy but granted, without objection, reasonable attorney fees in the sum of $15,000.00 to the Ohio Valley General Hospital Association.

Two principal issues are before the Court on appeal. First, whether the life beneficiary, Lydia Speidel Leedy, was entitled to direct the trustee to invade, consume or take-down the corpus of the trust estate for her benefit. Secondly, whether the parties were entitled to an award of reasonable attorney fees expended in the declaratory judgment action below.

All parties to this appeal agree that in interpreting a will, the primary objective of the court must be to carry out the intention of the testator, unless that intention violates some positive rule of law or public policy. This intention must be ascertained from considering the wording of the will in light of the circumstances surrounding the testator when he made the will, Cuppett v. Neilly, 143 W.Va. 845, 105 S.E.2d 548 (1958), and from reading the will in its entirety. Wiant v. Lynch, 104 W.Va. 507, 104 S.E. 487 (1927); Behrens v. Baumann, 66 W.Va. 56, 66 S.E. 5 (1909); Brant v. Virginia Coal & Iron Company, 93 U.S. 326, 23 L.Ed. 927 (1876); Buckle v. Marshall, 176 Va. 139, 10 S.E.2d 506 (1940). See generally, Weiss v. Soto, 142 W.Va. 783, 98 S.E.2d 727 (1957).

The appellant contends that the trial court erred in holding that she did not have a fee simple absolute estate in the corpus of the trust. This assignment of error is without substance. No party to this litigation disputes that Mrs. Leedy is a life beneficiary under the terms of the residuary clause. Appellant, however, asserts the will should be construed as having appended the power to consume the corpus of the estate in favor of the life beneficiary at her discretion and, if so construed, the life estate is converted into a 'fee simple' in the trust Res. This is not the law in this jurisdiction.

Where a will made after ...