William M. Talbott, Esq.
Harley E. Stollings, Esq.
Webster Springs, West Virginia Summersville, West Virginia
Attorney for Appellant Attorney for Appellee, Ernest V. Morton,
Jr., Executor of the Estate of Harry R.
Ernest V. Morton, Jr., Esq.
Webster Springs, West Virginia
Attorney for Appellees, Russie E. O'Brien Phares and James C. Phares, Jr.
The Opinion of the Court was delivered PER CURIAM.
JUSTICE SCOTT did not participate in the decision of the Court.
JUDGE GARY L. JOHNSON, sitting by temporary assignment.
In reviewing challenges to the findings and conclusions of the circuit
court, we apply a two-prong deferential standard of review. We review the final order and
the ultimate disposition under an abuse of discretion standard, and we review the circuit
court's underlying factual findings under a clearly erroneous standard. Questions of law
are subject to a de novo review. Syl. Pt. 1, Burnside v. Burnside, 94 W. Va. 263, 460
S.E.2d 264 (1995).
2. Traditional will contests challenging admission to probate of a particular document or portions thereof are limited by the two-year statute of limitations in W.Va. Code, 41-5-11. Fraud or tort actions that are not triable in probate court, are subject to laches or tort statutes of limitations. Syl. Pt. 3, Barone v. Barone, 170 W.Va. 407, 294 S.E.2d 260 (1982).
Appellant, third party defendant and cross-claimant below, Rosemary Parsons,
in her own right and as executrix of the Estate of Viola Meadows, deceased (hereinafter
Parsons or Appellant), appeals an order of the Circuit Court of Webster County, entered
on January 27, 1999, following Appellant's motion for reconsideration. The circuit court
denied Appellant's motion for an accounting because she was not entitled to any interest in
the estate at issue. The Appellant maintains that the trial court abused its discretion in failing
to order an accounting of the estate. Based upon a review of the record, the parties' briefsSee footnote 1
and arguments, as well as all other matters submitted before this Court, we conclude that the
trial court did not abuse its discretion. Accordingly, we affirm.
The Phareses, Vandevenders and Moores settled the action concerning the
right-of-way. A remaining issue, however, was based upon the March 9, 1990, cross-claim
of the Estate of Viola Meadows, by Rosemary Parsons, against the Phareses and against the
Estate of Harry Damron. The cross-claim alleged that the Phareses had never acquired title
to the property because the property had been devised to Viola Meadows under Harry
Damron's original will. In addition, the cross-claim alleged that a codicil changing that
devise was invalid.
On September 5, 1997, the circuit court entered summary judgment and ruled
that the statute of limitations precluded the challenge to the codicil of Harry Damron by
Parsons. The order stated:
The Court therefore finds Kathy Rice Qualls, being a witness to the Codicil, takes nothing under the terms of the Codicil, and the estate devised and bequeathed to her under the Codicil shall be distributed to the beneficiary named in the Will to receive that portion of the estate devised and bequeathed unto Kathy Rice Qualls under the Codicil.
According to Parsons, the ruling translated into a finding that Parsons, rather than Qualls,
was entitled to receive the one-fifthSee footnote 2
share of the residential property ostensibly sold to the
Phareses and the one-fifth share of the furniture and household furnishings, because the
codicil was only invalidated as to Kathy Rice Qualls.
This Court unanimously refused the appeal in Phares v. Vandevender, no.
980158, on April 27, 1998.See footnote 3
Parsons then requested the Damron Estate to account to her for
the one-fifth interest she alleged she was to receive by virtue of the September 5, 1997, order.
The Damron Estate refused and Parsons made a motion requesting that the circuit court
require the Damron Estate to account to her for her interest.
The circuit court entered an order on July 27, 1998, stating that the one-fifth
share in question would not go to Parsons. Instead, the one-fifth share would be distributed
to the other four named beneficiaries, through the codicil. Thus, Parsons was not entitled to
an accounting. Parsons moved the circuit court to reconsider. On January 27, 1999, the
circuit court entered an order denying Parsons' motion to reconsider this issue because it
found that Parsons was not entitled to any interest in the Damron Estate. It is from this order
that Appellant now appeals.
This Court set forth the standard of review for cases such as this in syllabus point two of Burnside v. Burnside, 194 W. Va. 263, 460 S.E.2d 264 (1995). In Burnside, we held that:
In reviewing challenges to the findings and conclusions
of the circuit court, we apply a two-prong deferential standard
of review. We review the final order and the ultimate
disposition under an abuse of discretion standard, and we
review the circuit court's underlying factual findings under a
clearly erroneous standard. Questions of law are subject to a
de novo review.
Id. at 264, 460 S.E.2d at 265.
In the original order dated September 5, 1997, which granted summary
judgment in favor of Appellees, the circuit court specifically found the following:
3. The earliest pleading of record herein whereby Rosemary Parsons sought to challenge the validity of the said Codicil was filed in the office of the Clerk of this Court on the 9th day of March, 1990, that being more than two (2) years after the date of recordation thereof, and the date of the County Commission's Order acknowledging the probate of the will.
4. The challenge by Rosemary Parsons to the validity of the Codicil to the Will of Harry R. Damron is precluded by the running of the statute of limitations within which such challenge may be filed pursuant to West Virginia Code Section 41-5-11.
At the time Appellant filed her original action challenging the validity of the
codicil, West Virginia Code § 41-5-11 (1982) provided that the period within which a will
or codicil may be challenged is two years from the date it was admitted to probate.See footnote 5
version of West Virginia Code § 41-5-11 in effect at that time provided:
After a judgment or order entered as aforesaid in a proceeding for probate ex parte, any person interested who was not a party to the proceeding, or any person who was not a party to a proceeding for probate in solemn form, may proceed by bill in equity to impeach or establish the will, on which bill, if required by any party, a trial by jury shall be ordered, to ascertain whether any, and if any, how much, of what was so offered for probate, be the will of the decedent. The court may require all other testamentary papers of the decedent to be produced, and the inquiry shall then be which one of all, or how much of any, of the testamentary papers is the will of the decedent. If the judgment or order was entered by the circuit court on appeal from the county court, such bill shall be filed within two years from the date thereof, and if the judgment or order was entered by the county court and there was no appeal therefrom, such bill shall be filed within two years from the date of such order of the county court. If no such bill be filed within the time prescribed, the judgment or order shall be forever binding. Any bill filed under this section shall be in the circuit court of the county wherein probate of the will was allowed or denied.
Id. (emphasis added).
There is no doubt that Appellant was barred by the statute of limitations to challenge the validity of the codicil at issue. This Court has recognized, in reference to the above-referenced version of West Virginia Code § 41-5-11, that [t]his bill in equity must be filed within two years from the date of the judgment of the circuit court that has acted upon an appeal from a county commission, or must be within two yours from a county commission's order if there was no appeal. Barone v. Barone, 170 W.Va. 407, 409, 294 S.E.2d 260, 262 (1982). We further held in syllabus point 3 of Barone that [t]raditional will contests challenging admission to probate of a particular document or portions thereof are limited by the two-year statute of limitations in W.Va. Code, 41-5-11. Fraud or tort actions that are not triable in probate court, are subject to laches or tort statutes of limitations. Barone, 170 W.Va. at 408, 294 S.E.2d at 261.
Once the circuit court found that the relevant statute of limitations precluded
Appellant's challenge to the codicil, her case was over. Appellant had no legal or factual
basis for demanding the circuit court require the Damron Estate account to her for any
interest in that estate.See footnote 6
Accordingly, the circuit court did not abuse its discretion by denying
Appellant's request for an accounting.