Plaintiff Below, Appellant
WESBANCO BANK WHEELING,
as Executor of the Estate of Dick Harmath;
ANNA HARMATH KOVACS;
and HELEN HARMATH LAITOS,
Defendants Below, Appellees
Appeal from the Circuit Court of Ohio County
Honorable Fred Risovich, II, Judge
Case No. 99-C-328 FR
REVERSED AND REMANDED WITH DIRECTIONS
Submitted: September 6, 2000
Filed: November 2, 2000
Paul C. Camilletti, Esquire
Camilletti, Sacco & Pizzuti
Wheeling, West Virginia
Attorney for Appellees Kovacs and Laitos
JUSTICE SCOTT delivered the Opinion of the Court.
1. A circuit court's entry of a declaratory judgment is reviewed de novo.
Syl. Pt. 3, Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459 (1995).
2. W.Va.Code 41-3-3  provides that the heirs at law of a devisee or legatee who dies before the testator take such property as the joint devisee or legatee would have taken if he had survived the testator, unless a different disposition thereof be made or required by the will. Syl. Pt. 1, Mrocko v. Wright, 172 W. Va. 616, 309 S.E.2d 115 (1983).
3. Where a will is made it is presumed that the testator intended to dispose
of his whole estate, and such presumption should prevail unless the contrary shall plainly
appear. Syl. Pt. 4, Rastle v. Gamsjager, 151 W. Va. 499, 153 S.E.2d 403 (1967).
4. The law favors testacy over intestacy. Syl. Pt. 8, In re Estate of Teubert, 171 W. Va. 226, 298 S.E.2d 456 (1982).
5. In providing for distribution of an estate, utilization of the phrase to the
express exclusion of any other person or persons, in the absence of clear and unequivocal
expression of intent for an alternate distribution, is insufficient to negate the operation of the
antilapse statute, West Virginia Code § 41-3-3 (1997).
This is an appeal by Stephen Kubiczky (hereinafter Appellant) from a
November 12, 1999, decision of the Circuit Court of Ohio County in favor of the Appellees,
Anna Harmath Kovacs and Helen Harmath Laitos (hereinafter Appellees). The Appellant
maintains that the lower court erred by finding that the Appellees, great aunts of the
Appellant, were entitled to the one-third share of the residuary estate of Mr. Dick Harmath
which had been bequeathed to the Appellant's deceased grandmother, Mrs. Mary Harmath
Kish. The Appellant contends that West Virginia Code 41-3-3 (1997),See footnote 1
the antilapse statute,
governs the resolution of this matter and compels the conclusion that the Appellant is entitled
to the one-third share of the residuary estate which had been bequeathed to his deceased
grandmother. We agree with the contentions of the Appellant, reverse the decision of the
lower court, and remand this matter for the entry of an order providing that the one-third
share of the residuary estate to which Mrs. Mary Harmath Kish would have been entitled
shall pass to her issue pursuant to West Virginia Code § 41-3-3.
The Fiduciary Commissioner determined that the Appellant should receive the
share to which his grandmother was entitled, reasoning that the antilapse statute controlled
the disposition of the estate. The Commissioner explained: Looking at the Testator's Will
as a whole, your Commissioner does not believe that the language 'to the express exclusion
of all others' by the Testator is 'condition precedent' or a 'different disposition' to defeat the
operation of the anti lapse statute. . . .
The Appellant filed a declaratory judgment action in the lower court and
moved for summary judgment. The lower court entered an order dated November 12, 1999,
denying the Appellant's motion and concluding that the disputed share constituted a void gift
under West Virginia Code § 41-3-4 (1997)See footnote 3
and should be distributed to the Appellees rather
than the Appellant. Specifically, the lower court stated:
It is the opinion of the Court that testator's language at the residuary clause of his Will, that his residue go equally to his three sisters, to the express exclusion of any other person or persons, is a clear and unambiguous expression of his intent which permits only his surviving sisters as his residuary beneficiaries, and constitutes a testamentary direction which controls the distribution of the residue of his estate. Therefore, when his sister Mary Harmath Kish predeceased him, it caused the bequest of her residuary share to be incapable of taking effect.
These events fall within the provisions of West Virginia Code 41-3-4 which provides that when a residuary bequest is incapable of taking effect the bequest passes to the remaining residuary legatees, in terms of this case - Anna Harmath Kovacs and Helen Harmath Laitos.
The Appellant appealed the lower court's determination to this Court,
contending that the phrase to the express exclusion of any other person or persons did not
constitute a different disposition defeating the operation of the antilapse statute. Such
reference, according to the Appellant, related to third parties living at the time the will was
written, such as those claiming to be illegitimate children of the testator or claiming to have
been equitably adopted by the testator, rather than to lineal descendants of a predeceased
The Appellant also emphasizes the testator's failure to provide an alternate
distribution should one or all of the sisters predecease him. The Appellant discusses the
significance of the fact that the testator, assisted by legal counsel in drafting the will, did not
include a clause stating that only the surviving sister or sisters would be entitled to the
residuary. Absent some alternate disposition, the Appellant argues that the death of a
beneficiary prior to the death of the testator triggers the application of the antilapse statute
and that the void-gift statute is consequently not implicated.
The Appellees maintain that the testator evidenced his intention for an alternate distribution by excluding all other persons from his will. They argue that such an alternate distribution defeats the operation of the antilapse statute and renders the gift to the deceased Mrs. Kish void under W. Va. Code § 41-3-4. We disagree.
While all states, except Louisiana, have some version of an antilapse statute,
the precise language and effect of the statutes vary greatly from state to state. A frequently
litigated issue in the antilapse context focuses upon the manner in which a testator who
desires to avoid application of the statute must express such intent. In order to prevent
application of the statute, courts have uniformly held that a testator must clearly and
unequivocally indicate his intent that the statute not apply. In re Estate of McCarthy, 126
N.W.2d 357, 361 (Iowa 1964). To defeat the operation of the antilapse statute, the will
must contain plain and clear language indicating that the testator intended a different
disposition of his or her property should a named beneficiary die first. Jacobsen v. Flathe,
1997 WL 576339, at *3 (Tenn.Ct.App. 1997); see In re Estate of Renner, 895 S.W.2d 180,
182 (Mo.Ct.App. 1995); Royston v. Watts, 842 S.W.2d 876, 879 (Mo.Ct.App. 1992). Where
a will does not clearly indicate that the person who made it intended to disinherit a
predeceased legatee in favor of a surviving legatee, the antilapse statute works to save the
deceased legatee's gift for his or her heirs. Jacobsen, 1997 WL 576339, at *3.
In Early v. Bowen, 447 S.E.2d 167 (N.C. Ct. App.
1994) review denied, 454 S.E.2d
249 (N.C. 1995), the North Carolina court succinctly stated:
A testator who desires to prevent lapse
must express such intent or provide for substitution of another devisee in language sufficiently clear
to indicate what person or persons testator intended to substitute for the legatee dying in his lifetime;
otherwise the anti-lapse statute applies. Id. at 170.
Courts have disagreed, however, regarding precisely what language is
sufficient to convey such contrary intent. If, for example, a testator directly references the
antilapse statute and expressly states that the statute is not to be applied to the devises in his
will, such expression of contrary intent is obviously sufficient to avoid operation of the
statute. Other expressions of contrary intent, however, are presented with less clarity, and
litigation is required to determine whether the specific language suffices to prevent operation
of the statute. An express requirement of survivorship of the devisee or a designation of an
alternative disposition if any devisee predeceases the testator have been deemed sufficient
to defeat application of the statute. See e.g. In re Estate of Burruss, 394 N.W.2d 466, 468
(Mich. Ct. App.1986) (bequesting estate to daughters "'or to the survivor or survivors of
them'"); In re Robinson's Will, 236 N.Y.S.2d 293, 295 (N.Y. Sur. Ct.1963) (bequesting
estate to brothers and sisters "'or to the survivor or survivors of them'");
In re Estate of
Farris, 865 P.2d 1275, 1278 (Okl. Ct. App.1993) (bequesting estate to brothers and sisters
"'or to survivor[s] of them'").
Throughout the development of standards surrounding the application of
antilapse statutes, several consistent principles have emerged. Primary among these is the
presumption of testator knowledge regarding the existence and operation of the antilapse
statute. In analyzing the particular language utilized by the testator, courts have generally
applied a presumption that the testator was aware of the existence and operation of the
antilapse statute and that he drafted the will in accordance with such understanding. Martin
v. Summers, 655 N.E.2d 424 (Ohio Ct. App. 1995). In In re Estate of Ricklefs, 508 P.2d 866
(Kan. 1973), the Kansas court reasoned:
Lawyers and testators of the state should be able to rely with confidence upon rules of property in preparing and executing wills, and be assured the intent of the testator as expressed therein will be carried out, instead of a will being made the instrument of introducing a vague discretionary law formed upon the occasion from the circumstances, to which no precedent can be applied, and from which no rule can be deduced.
Id. at 873.
Courts have also uniformly recognized the necessity of broad and liberal
construction of the antilapse statutes. In In re Estate of Braun, 126 N.W.2d 318 (Iowa Ct.
App. 1964), for instance, the Iowa court reasoned that the antilapse statute "was enacted to
preserve the devise for those who would presumably have enjoyed its benefits had the
deceased devisee survived the testator and died immediately thereafter." Id. at 320. To
achieve that purpose, the Iowa court provided the statute a broad and liberal construction.
Id. See also Brundige v. Alexander, 547 S.W.2d 232, 234 (Tenn. 1976). The compulsion
toward broad and liberal construction was summarized as follows in In re Estate of Kerr v.
Hall, 433 F.2d 479 (D.C. Cir. 1970):
As an expedient to mitigate the rigors of common law
doctrine, the antilapse statute is to be interpreted liberally with
a view to attainment of its beneficent objective. To render the
statute inoperative, a purpose inconsistent with that objective
must fairly appear, and from the terms of the will itself.
Id. at 483 (footnotes omitted).
The case sub judice differs markedly from Mrocko. The testator in Mrocko
included an express survivorship requirement in the provision devising to the beneficiaries
providing that all named are living at my death. Id. at 617, 309 S.E.2d at 117. The will
under scrutiny in the present case contains no such provision; nor does it contain any
alternate disposition of the portion of the estate which was to be given to Mrs. Mary Harmath
Keller v. Keller, 169 W. Va. 372, 287 S.E.2d 508 (1982), is also illuminating
as to the incorporation of an express alternate distribution provision in a trust. In Keller, this
Court encountered a scenario in which a testator had willed his property in equal shares to
his eight children. The testator had also provided a spendthrift trust for the share of one of
the children and expressly provided that on the death of that child his share should go to the
other surviving children, all named individually in the residuary clause. Specifically, the
I further direct that should George W. Keller die while the said trust fund is in existence that the said Trustee shall pay his funeral expenses from said fund and any balance remaining in said trust fund to pass outright to such of the brothers and sisters of said George W. Keller as are then living, share and share alike.
Id. at 374, 287 S.E.2d at 509.
The child for whom the spendthrift trust had been created predeceased the
testator. This Court, analyzing the antilapse statute, concluded that the deceased child's
share should pass to the surviving children. While [t]he trust provisions of the will had no
specific application[,] because the child for whom the trust had been created had
predeceased the testator, this Court found that the
trust provisions of the will expressed a general intent that the brothers and sisters surviving George W. Keller would take his share. It is clear that had the trust been in existence after the death of the testator, such brothers and sisters, rather than the appellants, would have taken George W. Keller's share.
169 W. Va. at 381, 287 S.E.2d at 513. Based upon the obviously intended alternate distribution, the antilapse statute did not apply to transfer the disputed share to George W. Keller's lineal descendants. Id.
We also adhere to the firmly established legal presumption against intestacy. We explained in Cowherd v. Fleming, 84 W. Va. 227, 100 S.E. 84 (1919) that [t]he presumption is that when a testator makes a will he intends to dispose of his whole estate, and if possible the will should be so interpreted as to avoid total or partial intestacy. Id. at
231, 100 S.E. at 86. In syllabus point four of Rastle v. Gamsjager, 151 W. Va. 499, 153
S.E.2d 403 (1967), this Court explained: Where a will is made it is presumed that the
testator intended to dispose of his whole estate, and such presumption should prevail unless
the contrary shall plainly appear. In syllabus point eight of In re Teubert's Estate, 171 W.
Va. 226, 298 S.E.2d 456 (1982), this Court succinctly stated the [t]he law favors testacy
The presumption against intestacy is quite significant in the present case. If
this Court were to adopt the reasoning of the Appellees and carry that argument to its logical
conclusion, escheat to the state would have resulted if all three residuary beneficiaries had
predeceased the testator. In other words, in such event, if the language utilized in the will,
to the express exclusion of any other person or persons, were interpreted to constitute
sufficient intent of a different disposition and thereby deemed to negate the operation of
the antilapse statute, escheat to the state would have been the result - a result which would
violate all established principles of testamentary interpretation. See W. Va. Code § 41-3-3.
This Court summarized the effect of the antilapse statute in syllabus point one
of Mrocko, as follows: W.Va.Code 41-3-3  provides that the heirs at law of a devisee
or legatee who dies before the testator take such property as the joint devisee or legatee
would have taken if he had survived the testator, unless a different disposition thereof be
made or required by the will. As established by the principal cases interpreting antilapse
issues throughout the nation, the burden of proving that a different disposition was made
or required by the will must be upon that party urging the inapplicability of the antilapse
statute. Such intention for a different disposition must be expressed clearly and
unequivocally by the testator, and the antilapse statute is to be granted broad and liberal
If the intention of the testator in the present case had been to bequeath a share
of his estate to only his sisters living at the time of his death, he should have expressed it.See footnote 5
The will as drafted, however, did not require survivorship; nor did it include an alternate
distribution which expressed any intent to exclude descendants of a predeceased beneficiary.
Premised upon the broad interpretation of the antilapse statute, the presumption
that the testator was aware of the workings of the antilapse statute when the will was written,
and the necessity for clear and unambiguous assertion of an alternate intent in order to defeat
the antilapse statute, we find that the antilapse statute applies and that the one-third share to
which Mrs. Mary Harmath Kish would have been entitled shall pass to her issue. In
providing for distribution of an estate, utilization of the phrase to the express exclusion of
any other person or persons, in the absence of clear and unequivocal expression of intent
for an alternate distribution, is insufficient to negate the operation of the antilapse statute,
West Virginia Code § 41-3-3. We consequently reverse the determination of the lower court
and remand this matter for the entry of an order in accord with this opinion.
Reversed and Remanded with Directions
If a devisee or legatee die before the testator, or be dead at the time of making of the will, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof be made or required by the will. And if the devise or bequest be made to two or more persons jointly, and one or more of them die without issue, or be dead at the time of the making of the will, the part of the estate so devised or bequeathed to him or them shall not go to the other joint devisees or legatees, but shall, in the case of a devise, descend and pass to the heirs at law, and, in the case of a bequest, go and pass to the personal representative, of the testator, as if he had died intestate, unless the will otherwise provides.