Paul O. Clay, Jr.
Fayetteville, West Virginia
Attorney for Appellee,
Robert F. Painter, Executor
D. Clinton Gallaher, IV
Fayetteville, West Virginia
Attorney for Appellees,
Hilda M. Allen and
O'Neta L. Shorter
Philip J. Tissue
Oak Hill, West Virginia
Attorney for Appellee,
Robert F. Painter, individually
Justice Albright 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. The paramount principle in construing or
giving effect to a will is that the intention of the testator prevails, unless
it is contrary to some positive rule of law or principle of public policy.
Syl. Pt. 1, Farmers and Merchants Bank v. Farmers and Merchants Bank,
158 W.Va. 1012, 216 S.E.2d 769 (1975).
3. The law favors testacy over intestacy.
Syl. Pt. 8, In re Estate of Teubert, 171 W.Va. 226, 298 S.E.2d 456
4. In construing a will the intention must
be ascertained from the words used by the testator, considered in light of
the language of the entire will and the circumstances surrounding the testator
when he made his will. Syl. Pt. 7, Weiss v. Soto, 142 W.Va. 783,
98 S.E.2d 727 (1957).
5. 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).
6. In construing a will, effect must be given to every word of the will, if any sensible meaning can be assigned to it not inconsistent with the general intention of the whole will taken together. Words are not to be changed or rejected unless they manifestly conflict with the plain intention of the testator, or unless they are absurd, unintelligible or unmeaning, for want of any subject to which they can be applied.
7. Where words are used in a will in a context
which renders them doubtful or meaningless, they may be substituted by other
words, if such substitution will carry into operation the real intention of
the testator as expressed in the will, considered as a whole and read in the
light of the attending circumstances. Syl. Pt. 2, In re Conley,
122 W.Va. 559, 12 S.E.2d 49 (1940).
The Appellants, Malcolm J. Coleman, Claude East,
Jr., and B.C. Wilkerson, Jr., appeal from an adverse order entered by the
Circuit Court of Fayette County on June 5, 2001, which held that Appellees
Hilda M. Allen and O'Neta L. Shorter (hereinafter referred to as Appellees
or the nieces) were beneficiaries under the will of Curtis J.
Coleman and, therefore, entitled to distribution of his estate under the terms
of the will. Appellants, who would benefit through intestate succession, argue
that the will of Mr. Coleman failed to properly devise the estate and accordingly,
the laws of intestacy should control. Upon our review of this matter, we find
no error and, accordingly, affirm.
Mr. Coleman visited Mr. Robert F. Painter, his certified public accountant, on November 21, 1994, for the purpose of changing his will. While there is some dispute as to whether Mr. Coleman or Mr. Painter directed Mr. Painter's secretary to type the will, a new will was prepared and executed in Mr. Painter's office on that date. Appellants take the position that the only substantive change made to the new will, when compared to Mr. Coleman's 1963 will, (See footnote 2) was the substitution of a new executor _ Mr. Painter instead of Mr. Coleman's sister-in-law. In actuality, there were multiple changes made to the new will: (1) the paragraph bequeathing Mr. Coleman's estate to Mrs. Coleman in the event of his death was deleted; (2) the nieces' names were altered to reflect their married surnames and their new places of residence; (3) an additional bequest of Mr. Coleman's 1994 Oldsmobile was made to Hilda M. Allen; and (4) Mr. Painter was appointed executor of the will in the event Mrs. Coleman could not serve in such capacity. The new will was properly executed and witnessed.
On November 12, 1995, Mr. Coleman died without issue.
As executor of the will,
(See footnote 3) Mr. Painter filed an appraisement
of the estate valuing it at $555,254.80. Before seeking advice of counsel,
Mr. Painter distributed $200,000 to the two nieces. On November 25, 1996, Mr. Painter filed a civil action in the circuit court through which
he sought a declaratory judgment
(See footnote 4) regarding distribution of
the estate based on the absence of a standard residuary clause and the apparent
failure of the will to make a valid devise or bequest given the Colemans'
After several years of inactivity,
(See footnote 5) the lower court held a status
conference on March 16, 2001, at which time it acknowledged the pendency of
various motions for summary judgment. Rather than ruling on those motions,
however, the lower court instead declared, as a matter of law, that the 1994
will of Mr. Coleman, on its face, evidenced a clear intent that Appellees
were to inherit under the will, equally, share and share alike, in fee
simple and absolutely. Appellants appeal from this order of the lower
court, which directs Mr. Painter to distribute the estate of Mr. Coleman to
Appellants argue that because the Colemans did not die
simultaneously and because the will lacked a standard residuary clause, the
estate is subject to passing through the laws of intestacy. See W.Va.
Code § 41-3-4 (1977) (Repl.Vol. 1997) (stating that real or personal estate
in the absence of . . . residuary devise or bequest shall pass as in
case of intestacy). Both this Court and others, however, have recognized
that [t]he law favors testacy over intestacy. Syl. Pt. 8, In
re Estate of Teubert, 171 W.Va. 226, 298 S.E.2d 456 (1982); Powell v.
Holland, 299 S.E.2d 509 (Va. 1983) (recognizing that [u]nlike the
law in England, '[i]n America, the law does not favor intestacy; rather it favors
the right of a donor to dispose of his property at death as he chooses, even
if at the expense of his heirs at law') (quoting Bauserman v. DiGiulian,
297 S.E.2d 671, 674 (Va. 1982)).
In making its declaration that the intent of Mr. Coleman was clear from the 'four corners' of the will, the lower court was applying the following principle set forth in syllabus point seven of Weiss: In construing a will the intention must be ascertained from the words used by the testator, considered in light of the language of the entire will and the circumstances surrounding the testator when he made his will. 142 W.Va. at 784, 98 S.E.2d at 729. Among the circumstances surrounding the testator's making of the 1994 will considered by the lower court was the fact that Mr. Coleman executed this will just days after his wife had died. Given this fact, the circuit court recognized that Mr. Coleman was fully aware at the time he executed his second will that simultaneous deaths were a physical impossibility.
In making its ruling, the circuit court was appreciative of the fact that if the intent of Mr. Coleman was not to devise his estate to Appellees when he executed the 1994 will, then there was no purpose to be accomplished through the execution of that will. The lower court was also cognitive of the principle that [w]here 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).
While courts clearly prefer not to make additions
to or deletions from the language of a will,
it is a well settled rule that effect must be given to every word of the will, if any sensible meaning can be assigned to it not inconsistent with the general intention of the whole will taken together. Words are not to be changed or rejected unless they manifestly conflict with the plain intention of the testator, or unless they are absurd, unintelligible or unmeaning, for want of any subject to which they can be applied.
Tiffanny v. Thomas, 190 S.E. 101, 103 (Va. 1937) (quoting Wooton v. Redd's Ex'r, 12 Grat. (53 Va.) 196, 208 (1855) (emphasis supplied). Under our state constitution, this decisional law of Virginia is clearly a part of this state's common law, (See footnote 6) because at the time West Virginia was founded, we adopted the common law of England and the law of the State of Virginia, except for those portions specifically changed by our Legislature or Constitution. (See footnote 7) Boarman v. Boarman, 210 W.Va. 155, 159, n. 4, 556 S.E.2d 800, 804, n. 4 (2001); accord Syl. Pt. 3, Seagraves v. Legg, 147 W.Va. 331, 127 S.E.2d 605 (1962) (holding that [t]he common law, if not repugnant of the Constitution of this State, continues as the law of this State unless it is altered or changed by the Legislature. Article VIII, Section 21 of the Constitution of West Virginia; Chapter 2, Article 1, Section 1, of the Code of West Virginia).
Accordingly, we hold that in construing a will,
effect must be given to every word of the will, if any sensible meaning can
be assigned to it not inconsistent with the general intention of the whole
will taken together. Words are not to be changed or rejected unless they manifestly
conflict with the plain intention of the testator, or unless they are absurd,
unintelligible or unmeaning, for want of any subject to which they can be
applied. Application of that principle to this case compels the conclusion
that only by excising the simultaneous death condition of Mr. Coleman's devise
to the Appellees, can the obvious intent of Mr. Coleman, as a childless individual,
to leave his estate share and share alike to his niece and his
wife's niece be effectuated.
There is no dispute that if the simultaneous death condition
of the devise to the nieces is left intact, there is no other bequest or devise
that can be accomplished through this testamentary instrument. Thus, this case
presents one of those rare instances when the failure to reject certain language
will render the document without any effect. If this Court were to adopt Appellants'
position, we would be nullifying the only testamentary intent contained in the
1994 will. To do so would be inconsistent with longstanding principles of giving
effect to a testator's intent, provided that such intent does not violate law
or public policy. See Farmers and Merchants Bank, 158 W.Va. at
1012, 216 S.E.2d at 770, syl. pt. 1. And, as we recognized in Davis Trust
Co. v. Elkins, 114 W.Va. 742, 175 S.E. 611 (1934), [c]ourts are never
bound to give a strict and literal interpretation to the words used, and by
adhering to the latter, defeat the manifest object and design of the testator.
Id. at 746, 175 S.E. at 613. Furthermore, [i]t is not the policy
of the law to seek grounds for avoiding devises and bequests, but rather to
deal with both so as to uphold and enforce them . . . . Id.
The case of In re Conley, 122 W.Va. 559,
12 S.E.2d 49 (1940), provides us with analogous authority for discussion purposes.
(See footnote 8)
At issue in Conley was the inept drawing of a will with language that attempted to transfer the share of the
testator's sons' life estates upon their respective deaths to the testator's
two grandchildren. The Court commented: Thus it seems that the provisions
for the disposal of testatrix's real estate, after the life estates have expired,
if taken literally, are without any possible legal operation, and testatrix
died intestate as to the remainders. Id. at 562, 12 S.E.2d at
51. Preferring to attach meaning to the words his share rather
than to create an intestacy, the Court observed that: Wherever possible
to bring into operation a testator's intention, a court will give such construction
to a will as to bring into effect every word or part thereof and such construction
will be made as to avoid the creation of intestacy. Id. Expounding
further on this principle, the Court in Conley stated that: This
duty embraces the power of a court, if necessary to ascertain a testator's
real intention, to reject, supply, transpose, or substitute words.
Id. (emphasis supplied).
Applying these salutary principles to
the facts in Conley, the Court determined that:
It seems quite unreasonable that testatrix, having named her two grandchildren in both paragraphs, intended that they take nothing thereunder. On the contrary, her evident intention was to deal effectively with the remainders after the expiration of the life estates; and, applying the rules of construction heretofore discussed, we think she intended by the words his share, the remainder estate after the expiration of each life tenancy.
122 W.Va. at 562, 12 S.E.2d at 51. This Court thus held:
Where words are used in a will in a context which renders them doubtful or meaningless, they may be substituted by other words, if such substitution will carry into operation the real intention of the testator as expressed in the will, considered as a whole and read in the light of the attending circumstances.
Conley, 122 W.Va. at 559, 12 S.E.2d at 49, syl. pt. 2.
In Weiss, this Court similarly prevented
the technical terms of a holographic will from being entirely futile
and utterly without meaning. 142 W.Va. at 799, 98 S.E.2d at 737. In
that case, the language of the will gave the testator's wife a fee simple
estate, while at the same time attempted to give the testator's daughters
the residue of the estate. Applying common sense principles of construction,
this Court concluded that, notwithstanding the language used, the testator
intended to give his wife a life estate and his daughters a remainder in fee
simple. In reaching this conclusion, the Court looked to the testator's awareness
of the financial condition of his wife and three married daughters at the
time of the devise and concluded that this knowledge supported a life estate
devise to the wife and a remainder estate to the daughters given that two
of the daughters had husbands with particularly weak financial means. Id.
at 798, 98 S.E.2d at 737. In full recognition of the fact that the residuary
language of the will would lack any meaning if the words were applied in their
technical sense, the Court in Weiss refused to permit the testator's
intent to be frustrated because of the insertion of improper terms in the
Applying these principles to the case at bar, we
agree with the lower court that the intent of the testator to leave his estate
to his niece and to his wife's niece is apparent from the four corners of the will. Any other interpretation of the will results
in a lifeless document that serves no purpose whatsoever. Moreover, it defies
logic, as discussed above, that Mr. Coleman would have had a new will prepared
following his wife's death_a document which continued to provide for Appellees
to receive his estate_if he had not intended for those individuals to be his
beneficiaries. Like the observation made in Conley, [i]t seems
quite unreasonable that the testator, having named Appellees
in his will, intended that they take nothing thereunder.
(See footnote 9)
122 W.Va. at 562, 12 S.E.2d at 51.
It has been observed on multiple occasions that
[t]he only reason anyone can have for making a will is to change the devolution of his property from that prescribed by the statutes of descent and distributions. Hence there is a strong presumption that the testator intended to dispose of his entire estate, and courts are decidedly averse to adopting any construction of a will which leaves a testator intestate as to any portion of his estate, unless compelled to do so.
Powell, 299 S.E.2d at 512 (quoting McCabe v. Cary's Ex'r, 116 S.E. 485, 487 (Va. 1923)). To decide this case by finding the devise inoperative due to the absence of the Colemans' simultaneous deaths would necessarily result in forcing the entire estate to pass through intestacy. See W.Va. Code § 41-3-4. Upon an examination of the will in its entirety and the circumstances surrounding its execution, we cannot reach the conclusion that this was the intent of Mr. Coleman. To the contrary, we concur with the lower court that the clear testamentary intent of Mr. Coleman was to leave his estate to Appellees.
Based on the foregoing, the decision of the Circuit
Court of Fayette County is hereby affirmed.
[o]ur link with Virginia common law, and thus indirectly with English common law, was provided by the original West
Virginia Constitution, which stated that
[S]uch parts of the common law and the laws of the State of Virginia as are in force within the boundaries of the State of West Virginia, when this constitution goes into operation, and not repugnant thereto, shall be and continue the law of this state until altered or repealed by the legislature. [W.Va.Const., art. II, § 8 (1863)].
161 W.Va. at 457, n. 4, 245 S.E.2d at 150, n. 4.
The constitutional provision
incorporating the common law into the law of West Virginia is article VIII,
section 13, formerly article VIII, section 21, which provides:
Except as otherwise provided in this article, such parts of the common law, and of the laws of this State as are in force on the effective date of this article and are not repugnant thereto, shall be and continue the law of this State until altered or repealed by the legislature.
This provision of the Constitution is to be read in pari materia with W.Va.Code § 2-1-1 (1979 Replacement Vol.), which states:
The common law of England, so far as it is not repugnant to the principles of the Constitution of this State, shall continue in force within the same, except in those respects wherein it was altered by the general assembly of Virginia before the twentieth day of June, eighteen hundred and sixty-three, or has been, or shall be, altered by the legislature of this State.
Thomas v. Board of Educ., 167 W.Va. 911, 916-17, n. 3, 280 S.E.2d 816, 819, n. 3 (1981).