73 W. Va. 96 | W. Va. | 1913
On a bill filed by the executor of the last will and testament of Appolonia Walter, for advice and1 instruction as to his duties, in view of controversies and disputes as to the validity of certain provisions of the will, the court below adjudged and decreed all of its provisions to be void except one requiring the erection of a monument at her grave; and the executor and two of the beneficiaries under the will, the Board of Foreign Missions of the Methodist Episcopal Church and the West Yirginia Wesleyan College at Buckhannon, have appealed.
The decree recites two grounds of invalidity, uncertainty as to beneficiaries and contravention of public policy. As to two of the beneficiaries, the Mount Morris Methodist Episcopal Church and the Pleasant Valley Methodist Episcopal Church, these reasons, in view of numerous decisions of this Court, amply justify the decree, and they have not appealed from it. As to the Board of Foreign Missions of the Methodist Episcopal Church, a corporation organized under the laws of the state of New York, the language of the will, in the two provisions made for it, is indefinite, but the West Virginia Wesleyan College at Buckhannon, another corporation, is designated by its full corporate name. As to the latter, there is no occasion for resort to extraneous evidence fo-r the purpose of identification. As to the former, there is such occasion, and the court seems to have taken the view that the evidence relied upon is insufficient.
One provision gives to the Board of Foreign Missions part
Both the admissibility and the sufficiency of the extraneous evidence herein set out to identify the objects of these two bequests are affirmed by Ross’s Exr v. Kiger, 42 W. Va. 402;
An effort on the part of the testatrix to make the $500.00 fund subserye three different purposes, two of which fail, aid to the Mount Morris Methodist Episcopal Church and maintenance of the graves of the Walter family, necessitates inquiry as to whether the Board of Foreign Missions, although sufficiently identified, can take this fund. Lack of certainty and definiteness as to the beneficiaries vitiates the first two of them. Pack v. Shanklin, 43 W. Va. 304; Wilson v. Perry, cited; Knox v. Knox, 9 W. Va. 124. The will appoints four trustees to take charge of this fund and gives the interest thereon to the Mount Morris Church for use in keeping in good condition the graves of the Walter family, the remainder to be used for repairs to the church or the pastor’s salary, according to the will and discretion of the trustees, provided the church shall remain in what was known as the Knottsville circuit. In case of its separation from the said circuit, then it was the desire of the testatrix that the graves should be kept in repair and the residue go to the Foreign Missionary Society. Two of the three purposes to which the testatrix intended the interest on the $500.00 fund to go having failed, it becomes necessary to determine whether the bequest of interest on that fund to the Missionary Society takes the whole of the interest thereon, under the rule or principle which gives void or lapsed legacies to the beneficiary of a residuary clause of a will. Had the other two purposes been capable of execution, the amount to go to the Missionary Society would have been uncertain, in the general sense of the term, but legally only contingent. It was dependent, first, upon the severance of the Mount Morris Church from the Enottsville circuit, secondly, upon the necessity of the use of the whole thereof for maintenance of the graves, and, thirdly,
Under this rule of construction, the Board of Foreign Missions takes the whole of the $1,000.00 fund, called coal money, the bequest of $100.00 out of it to the Pleasant Yalley Church having failed, ,and the terms of the gift to the board being residuary in form and effect. The language of the will is “The remainder of the $1,000.00 to go to the Missionary Society”. In case of deficiency of other estate, the medical, nursing and funeral expense of the testatrix and the cost of her monument were charged upon this fund, hut the hill shows assets from other sources applicable to the payment of these charges and sufficient to cover them.
The $1,000.00 fund, described in the will as coal money, $100.00 of which was given to Pleasant Yalley Church and the remainder to the Missionary Society, was invested by the testatrix in her lifetime in two interest bearing bonds of the city of Morgantown. It had not been designated in the bank in which it was deposited as -coal money. Nothing there indicated the source from which it had been derived-, but the fact is it had been largely, if not entirely, derived from the sale of coa-1 in land. After the bonds had been purchased, they were left in the bank, marked as the property of the testatrix. Thus the form of the fund was changed from a deposit in the hank to an investment in bonds, and, on this change of form, there is based a claim of ademption, or destruction of the legacy, but the authorities do not sustain this position. The fund had not ceased to exist, nor in any way been destroyed or lost at the date of the death of the testatrix. It remained in an altered form, and the legacy had not been satisfied by any advancement in her lifetime. That such a change does not work an ademption of the legacy is well settled by authority.
Under principles declared in Couch v. Eastham, 29 W. Va. 784, the two legacies to the Board of Foreign Missions hear interest from the expiration of one year after the date of the death of the testatrix until paid.
Owning one-third of a tract of land containing 175 acres, the testatrix devised her undivided interest therein to the West Virginia Wesleyan College at Buckhannon by its corporate name. In this provision, she dealt with the land and the timber thereon as two separate subjects, but it appears from the pleadings that the timber was not severed in her lifetime and remains on the land. As to this devise, the executor is charged with no duty whatever. He files his bill for advice and instruction as to his duties respecting the personal estate, disposed of by the will, but sets forth in his bill all the provisions of the instrument, and makes it an exhibit therewith. His bill discloses no interest or duty respecting the real estate, nor does he specifically pray for any relief concerning it, although he makes the West Virginia Wesleyan College a party. The bill defines the scope of the suit, and it is necessarily limited to the interest of the plaintiff. Under its prayer for general relief, he can have only such relief as the matters of fact set up in his bill entitle him to. As he has no interest whatever in the land, nor any duty to perform respecting it, nothing could be decided for him concerning the devise of the property. If the heirs see fit to contest the validity of that clause of the will, the question is one for settlement between them and the college, in which the executor has no interest. By their answer, the brother and sister claim nothing more than a life estate in the land, and concede to the college the remainder in fee. They pray for no relief against the college, nor does the college by its answer ask any relief against them. Their controversy, if they have any, is in no sense germane to the subject matter of the bill. Jurisdiction in equity to construe wills is limited and special, and will be exercised only as incident to general equity jurisdiction, and then, in a particular case, only to the extent of determining whether or not the relief sought can be granted. Martin v. Martin, 52 W. Va.
For the reasons stated, the decree complained of, in so far as it declares the bequests to the Foreign Missionary Society and the Missionary Society and the devise to the West Virginia Wesleyan College void, and the will itself to be inoperative and void, except to the extent that it appoints Charles M. Cornwell as executor and directs him, out of the estate of the testatrix, to provide her last resting place with a suitable monument, at a cost of not less than $50.00, will be reversed, annulled and set aside, and in all other respects affirmed; and it will be here decreed that the will, properly interpreted and construed, gives the $500.00 fund mentioned in the will and also the fund of $1,000.00 invested in the Morgantown bonds to the Board of Foreign Missions of the Methodist Episcopal Church, with interest on each from the expiration of one year after the date of the death of the testatrix until paid, and that the devise to the West Virginia Wesleyan College at Buekhannon be dismissed out of this suit as a matter not involved in the pleadings. Costs in this Court will be decreed to the appellants as the parties substantially prevailing.
Reversed in part. Affirmed in part.