Young v. Lewis

• Decision Date: 16 June 1953
• Docket Number: No. 10516,10516
• Citation: 76 S.E.2d 276,138 W.Va. 425
• Court: West Virginia Supreme Court
• Parties: YOUNG, v. LEWIS et al.

Page 276

76 S.E.2d 276

138 W.Va. 425

YOUNG, v. LEWIS et al.

No. 10516.

Supreme Court of Appeals of West Virginia.

Submitted April 22, 1953.

Decided June 16, 1953.

Syllabus by the Court.

The heirs of a testator are to be determined as of the date of his death, in the absence of a clear intention that he intended the class so designated should be ascertained at a different time, which intention must be discernible from the will, or, in a proper case, from extrinsic facts.

Selden S. McNeer, Huntington, Samuel D. Littlepage, Point Pleasant, Selden S. McNeer, Jr., Huntington, Somerville, Hyer & Littlepage, Point Pleasant, Campbell, McNeer & Woods, Huntington, for appellants.

Goodwin & Goodwin, Robert B. Goodwin, Ripley, J. G. F. Jounson, Carroll W. Casto, Point Pleasant, for appellee.

LOVINS, Judge.

Otis S. Young, asserting title to a tract of land containing approximately 168 acres under the will of his grandfather, Otis F. Stribling, brought this suit in the Circuit Court of Mason County, West Virginia, against Walter H. Lewis, Jr., Dorthy Lewis Polan, Lake Polan, Jr., Rose Nibert and Harry Nibert.

Defendants, Walter H. Lewis, Jr., Dorthy Lewis Polan and Lake Polan, Jr., Rose Nibert and Harry Nibert demurred to the bill of complaint.

We do not think it is necessary to state the grounds of the three demurrers. It suffices to say that the demurrers to the bill of complaint were overruled, and the defendant required to answer the bill within 15 days from the date of entry of the decree overruling the demurrers.

The defendants Walter H. Lewis, Jr., Dorthy Lewis Polan and Lake Polan, Jr., declined to file an answer to the bill of complaint, and thereupon, the trial chancellor entered the final decree herein complained of. It will be hereinafter noted that the plaintiffs abandoned any claim to the lands carved out of the 168 acre tract and conveyed to Rose Nibert and the Board of Education of Hannan District.

The trial court decreed that title to the tract of land is vested in the plaintiffs, cancelled certain deeds and decrees in the defendants' chain of title and adjudged them to be clouds upon the title of plaintiffs. From that decree, defendants Walter H. Lewis, Jr., Dorthy Lewis Polan and Lake Polan, Jr. prosecute this appeal.

Otis F. Stribling acquired an undivided one-half interest in the tract of land from H. M. Roup and the other one-half undivided interest from W. H. Sayre, by deeds of conveyance dated, respectively, the 22nd day of December, 1894, and October 8, 1895.

Otis F. Stribling owned the land at the time of his death, which occurred in the month of June, 1912. He died testate. His will contained seven paragraphs designated as 'items'.

Though we consider the entire will of Otis F. Stribling in determining his intention, we think it suffices to quote the fourth item of his will, which reads as follows:

'I give and devise to may son, Mathew W. Stribling, the farm adjoing my home farm on the lower side, containing one hundred and sixty acres, more or less, and being the same premises I purchased of the Rouh Heirs during the time of his natural life, with remainder in fee simple to his children if any he leaves, and in case my said son should leave no children then the remainder estate shall descend to my heirs.'

As will hereinafter appear the fourth item of the will is the material and controlling part of the will.

By deed bearing date the 14th day of August, 1912, the widow of Otis F. Stribling, Catharine S. Young, his daughter, James S. Young, her husband, and William N. Stribling, the other son of Otis F. Stribling, executed a deed conveying all their estate in the 168 acre tract of land to Mathew W. Stribling. It is to be noted that the certificate of acknowledgment of such deed by Virginia C. Stribling and Catharine S. Young is dated three days prior to the date of the deed.

Mathew W. Stribling and Mary Stribling, his wife, conveyed a small tract of one acre, out of the 168 acre tract, to the Board of Education of Hannan District, Mason County, West Virginia, and another one acre tract of land, out of the 168 acre tract, to Rose Nibert.

A suit in chancery was instituted in the Circuit Court of Mason County, wherein H. A. Hayman sued on behalf of herself and all other lien creditors of Mathew W. Stribling against Mathew W. Stribling, his wife and various other persons.

A decree in that suit was made on the 16th day of January, 1930, decreeing and establishing the priorities of liens against the real estate of Mathew W. Stribling, who was required to pay certain sums of money within ten days from the rising of the court. In default of such payment, the 168 acre tract of land was decreed to be sold to pay off and discharge the liens. The tract sold to Rose Nibert was excluded from such decree.

In accordance with the decree of the sale, the special commissioners, thereby appointed, sold the land, described as 160 acres, to the Citizens National Bank of Point Pleasant, West Virginia, and after confirmation of the sale, conveyed the same to the purchaser by deed bearing date the 21st day of March, 1930. The bank conveyed the land to Walter H. Lewis, Jr., and Dorthy Jane Lewis, (now Dorthy Lewis Ploan), by deed bearing date the 12th day of December, 1940.

The plaintiffs allege in their bill of complaint that Mathew W. Stribling did not own the fee simple title in the 168 acre tract of land, but only owned a life estate therein, under the fourth item of Otis F. Stribling's will, Mathew W. Stribling, the devisee named in the fourth item of the will, and the grantee named in the deed from Virginia C. Stribling, and others, died intestate in the year, 1951, without children surviving him.

The plaintiffs allege that the heirs of Otis F. Stribling were not determined until the death of the life tenant, Mathew W. Stribling; that such heirs so ascertained are Cornelia K. Stribling Johnson, William Matthew Stribling, Allen Neal Stribling, Donna M. Stribling Shaltoches and Jewell C. Stribling Barnett, children of William N. Stribling, and the plaintiff, Otis S. Young, a son of Catharine Stribling Young; that William N. Stribling and Catharine S. Young, having predeceased Mathew W. Stribling, the children of William N. Stribling, deceased, are the true owners in fee simple of a one-half interest in the 168 acre tract; and, that Otis S. Young, the plaintiff herein, is the owner of the other one-half undivided interest in fee simple.

The plaintiffs allege that the heirs of William N. Stribling, together with their spouses, and the widow of William N. Stribling, have given unto him, by appropriate written instrument, the sole and exclusive right to purchase a one-half undivided interest in the 168 acre tract of land.

Plaintiffs allege that the heirs of Otis F. Stribling, determinable as of the date of the death of Mathew W. Stribling, have not conveyed their estate in the 168 acre tract of land; and, that the deed executed by Virginia C. Stribling, the widow of Otis F. Stribling, Catharine S. Young and James Young, her husband, and William N. Stribling to Mathew W. Stribling, bearing date the 14th day of August, 1912, did not affect the rights of the true heirs of Otis F. Stribling, nor were such heirs parties to the suit of Hayman v. Matthew W. Stribling, and others.

Plaintiffs aver that the defendants are receiving profits from the land, and that they will continue to receive them unless prevented by the order of the trial court. The prayer of the bill is substantially as follows: That the deed bearing date the 4th day of August, 1912, from Virginia C. Stribling, and others, to Mathew W. Stribling; that the deed from Mathew W. Stribling and Mary Stribling, his wife, to Rose Nibert; that all of the several decrees made in the suit of Hayman v. Matthew W. Stribling, and others, affecting the title to the land; that the deed from Charles E. Hogg and E. J. Somerville, special commissioners, to the Citizens National Bank of Point Pleasant, West Virginia; and, the deed bearing date the 12th day of December, 1940, from the Citizens National Bank to Walter H. Lewis, Jr., and Dorthy Lewis Polan, be set aside and held for naught and declared to be null and void as clouds upon the title.

The final decree discloses that the widow of William N. Stribling, Okey Stribling, Allen Neal Stribling, William M. Stribling, Jewell C. Barnett and her husband, Donna M. Stribling Shaltoches and her husband, Cornelia K. Stribling Johnson and her husband, moved that they be made parties plaintiff in the bill of complaint. The trial court, by the final decree, made such persons parties plaintiff, and all the plaintiffs then 'waived any right, title, interest or claim in and to the portion' of the 168 acre tract of land thereof conveyed to the Board of Education, Hannan District, predecessors in title to the Board of Education, Mason County, West Virginia, as well as any right, title, interest or claim in and to the land conveyed to the defendant, Rose Nibert.

The only controversy now existing as to the title of the 168 acre tract of land is between Otis S. Young, his alleged co-heirs and the defendants Walter H. Lewis, Jr., Dorthy Lewis Polan and Lake Polan, Jr.

If the contention of the plaintiff is upheld that the heirs of Otis F. Stribling are determinable as of the date of the death of Mathew W. Stribling, the life tenant, the decree of the trial court should be affirmed. On the contrary, if the three defendants are right in their contention that the heirs of Otis F. Stribling should be determined as of the date of his death, he plaintiffs would have no estate in the 168 acre tract, and the decree of the trial court must be reversed.

We do not think that the will of Otis F. Stribling calls for construction, since the language employed by him in his will is plain and free of any ambiguity. We apply the language of Judge Snyder to the entire will, as well as the fourth item: 'The provision or clause of...