Wiant v. Lynch

• Decision Date: 22 November 1927
• Docket Number: (No. 5947.)
• Citation: 140 S.E. 487
• Court: West Virginia Supreme Court
• Parties: WIANT. v. LYNCH.

140 S.E. 487

WIANT.

v.LYNCH.

(No. 5947.)

Supreme Court of Appeals of West Virginia.

Nov. 22, 1927.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Suit by H. E. Wiant, administrator of E. H. Elliott, deceased, against J. R. Lynch, administrator of Sarah E. Elliott, deceased. From an adverse decree, defendant appeals. Affirmed.

B. W. Craddock and R. F. Kidd, both of Glenville. for appellant.

J. D. Jones, of Glenville, and Haymond & Fox, of Sutton, for appellee.

HATCH EH, P. [2] This is a suit over the right to personal property between the respective administrators of E. H. Elliott and his wife. Sarah E. E. H. Elliott died testate; his wife, intestate. They had no children. Neither the bill nor the answer ask for a construction of his will; but a determination of this litigation requires that it be construed. After directing payment of his debts, the will proceeds as follows:

"Second. I will and bequeath to my beloved wife, Sarah E. Elliott, all the residue of my estate, real personal and mixed, for and during her natural life, and at her death all that remains thereof is to go to my legal living heirs, except that Bayard T. Price, my nephew, to whom I hereby bequeath the sum of one dollar as and for his full share of my estate, and he shall share no further in the distribution thereof, except further that after the death of my wife, that in the distribution of the remainder of my property or estate left by her that the portion thereof that would legally go to Sarah Francis Elliott, the only heir of my brother P. M. Elliott, deceased, shall not be paid to her until such time as she shall arrive at the age of 21 years.

"Third. I hereby appoint and constitute my said wife Sarah E. Elliott the executrix of this my last will and testament and direct that she qualify as such without security of any kind, and I further direct that there be no appraisement of my estate or any public sale thereof, and having the utmost confidence in the judgment of my said wife I desire that she shall not be required to make any settlement, as it is my desire that my said wife is to fully enjoy a sufficiency of the property hereby willed to her so long as she may live to make her contented and happy."

The appellant contends that Mrs. Elliott was devised an absolute estate, relying on Blake v. Blake, 92 W. Va. 663, 115 S. E. 794, National Surety Co. v. Jarrett, 95 W. Va. 420, 121 S. E. 291, 36 A. L. R. 1171, and kindred cases. The appellee contends that she received only a life estate. He relies on Behrens v. Baumann, 66 W. Va. 56, 66 S. E. 5, 27 L. R. A. (N. S.) 1092, Woodbridge v. Wood-bridge, 88 W. Va. 1S7, 106 S. E. 437, and allied decisions. The two lines of cases advocate the same rules of construction. After allowing for some dissimilarity in the language of the several bequests, the variance in the decisions is due to difference in the application of those rules. In the cases cited by appellant, phrases conferring on the life tenant the right to use or dispose of the property are regarded with great liberality. In the cases cited by appellee, language claimed to enlarge the life estate is scrutinized with some severity. For example, in Blake v. Blake, supra, a devise of money, credits, and bonds to the wife, "to have and to hold to her for her own individual use during her lifetime, " with residue, "if any, " after paying her just debts, etc., to certain children, was construed to, give her the unlimited use of the bequest. In Behrens v. Baumann, supra, a devise of property to the wife, "for her own use during her natural life, " with the request that she administer same for the benefit of herself and certain heirs, with remainder to them of "whatsoever what may be left, " was held to confer on her only the life estate. These decisions are difficult to reconcile, and we shall not attempt to do so. The logic which sustains one decision opposes the other.

One is the product of liberal, the other of strict, construction.

Further comment on the divergent cases would be unfruitful, as they have been exhaustively discussed in former decisions of this court. See particularly Milhollen's Ad-m'r v. Rice, 13 W. Va. 510; Morgan v. Morgan, 60 W. Va. 327, 55 S. E. 389, 9 AnN. Cas. 943; National Surety Co. v. Jarrett, supra; Totten v. Dawson (decided by this court Oct. 11, 1927) 139 S. E. 858. Both citations concur that, where property is willed to a beneficiary for life, but he is given unlimited power of disposal, his estate is absolute. If not expressly stated, the power of disposal must be clearly implied. "Where a life estate is expressly given, to convert it into a fee there must be clear power of disposition given to the devisee" for life. Stout v. Clifford, 70 W. Va. 178, 181, 73 S. E. 316, 317; 2 Alexander on Wills, § 977.

As the second item in the will limits the wife to a life estate in express terms, the burden is on appellant to show a superadded power of disposition. He relies on the third item—particularly that part which expresses the desire of the testator that no settlement be required of the wife, and that she fully enjoy a sufficiency of the property to make her happy and contented. He contends that full enjoyment of the estate means absolute power over it. In order for that contention to prevail, the right of full enjoyment must be inconsistent with, or in addition to, her rights as a life tenant.

The word "enjoy" has no primary significance of sale or disposal. Its accepted definition is "to have, possess, and use with satisfaction; to occupy or have the benefit of." That definition conveys the idea of retention, rather than disposition. So long as the devisee could pleasantly use the bequest as devised, no implied right of disposal would arise. Before the right to enjoy would imply the right to sell, the bequest would have to be unsuited to enjoyment in the form devised. There is nothing in the will to indicate that the property could not be enjoyed by the wife in the form in which it was...