Wooddell v. Frye, 11057

CourtSupreme Court of West Virginia
Writing for the CourtHAYMOND; BROWNING
Citation144 W.Va. 755,110 S.E.2d 916
PartiesE. C. WOODDELL et al. v. Martha F. FRYE et al.
Docket NumberNo. 11057,11057
Decision Date17 November 1959

Page 916

110 S.E.2d 916
144 W.Va. 755
E. C. WOODDELL et al.
v.
Martha F. FRYE et al.
No. 11057.
Supreme Court of Appeals of West Virginia.
Submitted Sept. 8, 1959.
Decided Nov. 17, 1959.

Syllabus by the Court

1. In construing a will the intention of the testator must be ascertained from

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the words used by him, considered in the light of the language of the entire will and the circumstances surrounding the testator when he made his will.

2. A gift in fee simple, unequivocally made in one clause of a will, can not be taken away, limited or diminished by a subsequent clause, except by provisions which are equally as clear and decisive as the words of donation.

3. A provision of a will which gives and bequeaths 'all my property of both personal and real to my wife * * *, to be hers absolutely' vests in the wife an absolute fee simple estate in the real estate of the testator, and immediately subsequent provisions that 'the use of all all the of which I may die seized and possessed for and during her natural life; and it is my will that after her death my said real estate shall dsend to any in my children if there be any living share and share alike' are not equally as clear and decisive as the words which create and absolute fee simple estate and do not take away, limit or diminish such absolute fee simple estate.

A. E. Cooper, Arnold O. Weiford, Marlinton, for appellants.

Andrew Detch, John L. Detch, Lewisburg, S. H. Sharp, Marlinton, for appellees.

HAYMOND, Judge.

This is a suit in equity instituted in the Circuit Court [144 W.Va. 756] of Pocahontas County in April, 1958, to partition certain real estate owned by Amos Uriah Wooddell at the time of his death on September 3, 1940. He executed a will dated April 22, 1919 and admitted to probate October 2, 1940, by which he willed and bequeathed his property, both real and personal, to his wife Sadie Sue Wooddell who died testate on July 5, 1957. No children were born of the marriage between Amos Uriah Wooddell and his wife Sadie Sue Wooddell. In addition to his wife, Amos Uriah Wooddell was survived by four brothers. G. M. Wooddell, E. B. Wooddell, J. L. Wooddell and E. C. Wooddell, and three sisters, Cynthia Wooddell, Myrtle Alice Auldridge and Neely Baker. Cynthia Wooddell and J. L. Wooddell died intestate and without issue, leaving their surviving brothers and sisters and the children of any deceased brother and sister as their heirs at law.

The plaintiffs are E. C. Wooddell and his wife, and the children and the grandchildren of E. B. Wooddell, a deceased brother of Amos Uriah Wooddell, and their husbands and wives, and the defendants are Martha F. Frye and her husband, two other children of Myrtle Alice Auldridge, a deceased sister of Amos Uriah Wooddell, and her husband, the children of G. M. Wooddell, a deceased brother of Amos Uriah Wooddell, and their husbands and wives, Neely Baker, a sister of Amos Uriah Wooddell, and her husband, and Mary F. Hannah, a sister of Sadie Sue Wooddell. The plaintiffs and the defendants, other than Mary F. Hannah, claim to be the owners of the real estate of Amos Uriah Wooddell as his heirs at law and the defendant Mary F. Hannah claims to be the owner of such real estate as beneficiary under the will of Sadie Sue Wooddell, the wife of Amos Uriah Wooddell.

At the time of his death Amos Uriah Wooddell owned Lot 8 in Block 34 in Marlinton and an undivided one-half interest in Lots 14 and 15 in Block 45 in Marlinton and Sadie Sue Wooddell owned the other undivided one-half interest in those two lots. By her will, dated September 5, 1950 and admitted to probate July 11, 1957, [144 W.Va. 757] Sadie Sue Wooddell devised all the foregoing real estate to the defendant Mary F. Hannah.

The defendant Mary F. Hannah demurred to the bill of complaint and specified these grounds in support of the demurrer: (1) That the plaintiffs and the other defendants as heirs at law of Amos Uriah Wooddell have no interest in the

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foregoing real estate which is sought to be partitioned in this suit; (2) that the defendant Mary F. Hannah is the owner in fee simple of such real estate; (3) that under the will of Amos Uriah Wooddell, Sadie Sue Wooddell was devised such real estate in fee simple; and (4) that Sadie Sue Wooddell by her will devised such real estate in fee simple to the defendant Mary F. Hannah.

By decree entered July 7, 1958, the circuit court sustained the demurrer of the defendant Mary F. Hannah to the bill of complaint of the plaintiffs and, after the plaintiffs declined to amend the bill of complaint, dismissed this suit. From that decree this Court granted this appeal upon the petition of the plaintiffs.

The sole question to be determined is the meaning and the effect of the will of Amos Uriah Wooddell, a copy of which is filed as an exhibit with the bill of complaint.

The plaintiffs contend that under the will of Amos Uriah Wooddell his wife took only a life estate in his real estate; that at his death his real estate, subject to her life estate, passed by virtue of the statute of descent and distribution, Section 1, Article 1, Chapter 42, Code, 1931, to his brothers and sisters and their descendants and his wife; and that only an undivided one-eighth interest in such real estate was devised to the defendant Mary F. Hannah by the will of Sadie Sue Wooddell. On the contrary the defendant Mary F. Hannah insists that under the will of Amos Uriah Wooddell his wife took an estate in fee simple in his real estate; that the defendant Mary F. Hannah was given an estate in fee simple in such real estate by the will of Sadie Sue Wooddell; and that the plaintiffs and the other defendants as heirs at law of [144 W.Va. 758] Amos Uriah Wooddell have no interest or estate whatsoever in the real estate owned by him at the time of his death.

The will of Amos Uriah Wooddell, the meaning and the effect of which must be determined on this appeal, is couched in this language:

'I give and bequeath all my property of both personal and real to my wife Sadie Sue Wooddell, to be hers absolutely and the use of all all the of which I may die seized and...

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7 cases
  • Seifert v. Sanders, 16817
    • United States
    • Supreme Court of West Virginia
    • May 15, 1987
    ...v. Menchaca, 354 S.W.2d 635, 639 (Tex.Civ.App.1962); Johnson v. Stark, 585 S.W.2d 900, 904 (Tex.Civ.App.1979). 2 In Wooddell v. Frye, 144 W.Va. 755, 110 S.E.2d 916 (1959), this Court concluded that a provision of a will which conveyed "all my property of [sic] both personal and real to my w......
  • Security Nat. Bank & Trust Co. v. Willim, 12610
    • United States
    • Supreme Court of West Virginia
    • February 21, 1967
    ...language of the entire will and the circumstances surrounding the testator when he made his will.' Point 1 Syllabus, Wooddell v. Frye, 144 W.Va. 755 (110 S.E.2d 2. In a case involving the construction of a will made in 1900 by a testatrix who died in 1908, and particularly involving constru......
  • Guaranty Nat. Bank v. Morris, 16487
    • United States
    • Supreme Court of West Virginia
    • March 25, 1986
    ...but what the words he used do express." Syllabus point 6, Weiss v. Soto, 142 W.Va. 783, 98 S.E.2d 727 (1957). See, Wooddell v. Frye, 144 W.Va. 755, 110 S.E.2d 916 (1959); Hunt v. Furman, 132 W.Va. 706, 52 S.E.2d 816 (1949); Wilcox v. Mowrey, 125 W.Va. 333, 24 S.E.2d 922 (1943); Wills v. Fol......
  • Dilmore v. Heflin, 13390
    • United States
    • Supreme Court of West Virginia
    • October 21, 1975
    ...considered and all of its language be given effect, if possible. Wheeling Dollar Savings & Trust Co. v. Leedy, supra; Wooddell v. Frye, 144 W.Va. 755, 110 S.E.2d 916 (1959); Weiss v. Soto, supra; Wise v. Hinegardner, 97 W.Va. 587, 125 S.E. 579 (1924); Woodbridge v. Woodbridge, 88 W.Va. 187,......
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