94 W. Va. 320 | W. Va. | 1923
The decree of June 30, 1922, appealed from, construes the will of Cyrus E. Brenneman who died in February, 1919, ascertains the devises and bequests and to whom they shall be paid and directs the executor to sell and reduce to cash all of the property of the testator except that devised in the second and fifteenth clauses of the will. - It directs the payment of the debts, funeral expenses and costs of administration, together with the various bequests made; and then directs the executor to distribute the remainder to those parties to whom are bequeathed amounts of money by the 3d, 4th, 5th, 6th, 7th, 8th, 9th, 11th, 12th, 13th and 14th clauses of the will in the relative proportions as the amount of said bequests bear to each other.
There are seventeen items or clauses in the will. The controversy directs special consideration to items 2, 10, and 17. Item 1 provides for the payment of the debts and funeral expenses; item 2 reads as follows: “I give, devise and bequeath to my brother, George G. Brenneman, the farm and premises on which I now reside, situate in Grant district, Hancock county, West Virginia, to be his own forever.” Items 3, 4, 5, 6, 7, 8, 9, 11, 12, 13 and 14 “give and bequeath” sums of money to certain named relatives, including relatives of testator’s wife, and including plaintiff Robert R. Hobbs, the executor. Item 10 reads as follows: “I will, devise and bequeath to Cyrus Edward Brenneman, son of my nephew, Gerard Brenneman, deceased, the sum of three thousand dollars ($3,000), to be paid to him by my brother George G. Brenneman, 'as a condition of the bequest to my said brother in item second of this, my will.” By the 15th item the testator wills, devises and bequeaths to the heirs of his deceased brother, William J. Brenneman, all his right, title and interest in and to Philicey Island in the Ohio River, Beaver County, Pennsylvania, and concludes with the following words: "This is all I intend said heirs to have out of my estate." By the 16th item the testator directs that all of the remainder of his estate, .wherever situate, be spld and disposed of as his executor shall deem best, at public or- private sale, and authorizes and directs him to execute, acknowl
The appraisement of the estate was $163,252.64, including the land devised to George G. Brenneman in item 2 of the will at $26,000; and the Philicey Island at $500. The debts and taxes as estimated by the executor, am minted to $17,669.33. The various money legacies, including the $3,000 to Cyrus Edward Brenneman, mentioned in the 10th item of the will, amount to $23,800, leaving the approximate amount to be distributed under the 17th clause, the residuary clause, after deducting the debts and taxes, '$98,283.31. It is over the distribution of this sum under the provisions of Clause 17 that the controversy arises. The appellants, George G. Brenneman and Cyrus Edward Bren-neman, a namesake of the testator, and grandson of George G. Brenneman, contend that they shordd participate with the other beneficiaries in the will in proportion to the amount bequeathed to each of them. Appellees contend that George G. and his grandson, Cyrus Edward Brenneman, are' not legatees within the meaning of the residuary clause and are not entitled to any part of the estate under the will except the farm mentioned in item 2, valued at $26,000, from which . the legacy of $3,000 to the grandson shall be' paid. In other words, that George G. Brenneman shall receive only the farm, burdened with the specific legacy of $3,000 to his grandson; and the grandson is entitled only to the $3,000, and cannot participate in the residuary fund. The decree, as above stated, embodies the contention of appellees. Under the construction given by the lower court, as embodied in the decree, George G. receives the farm only and Cyrus Edward
The answer of George G. Brenneman sets out his contention as to the true construction of the will and his right to participate in the residuary fund, the amount and nature of decedent’s property, the relationship of the various beneficiaries to the testator and a statement of the next of kin of the testator. In addition thereto the answer alleges that the testator and defendant were the sons of Jacob Brenne-man, deceased, who devised to them jointly his farm, which was afterwards partitioned; and upon their respective parts of which they resided in brotherly love and affection and neighborly friendship-; that the testator had no children, but showed a deep affection for the children of defendant, George G. Brenneman, and at one time actually prepared a deed conveying to them the farm devised in item 2, but was prevailed upon by defendant and his children not to part with his farm in his life time; that afterwards; the testator had declared at different times that the farm should go to them when he died. This allegation of the bill, upon exceptions, was stricken out as having no bearing upon the question of the true construction to be placed on the will. The answer also sets out the conditions under which the will was made and avers that the testator was unfamiliar with the technical phraseology of the law, and in his will did hot use technical expressions but told Cooper, the draftsman, the names of his beneficiaries and how much property and what property he wanted each to have, and relied on Cooper to put his wishes in suitable language; that Cooper also was unfamiliar with-and unskilled in the use and technical meaning of the words used in the will, and that the words, “will,” “give,” “devise,”, “bequeath,” “bequest,” and “legatees,” appearing in the will were used in their popular sense and not in their technical sense, and that these words were not used at all by the testator when he told how his property should be disposed of; that in telling Cooper how he wanted to dispose of the balance of his property under the residuary clause he did not use the words “residue,” “surplus,” “bequeath” and “legatees,” at all, but simply told Cooper that-
Appellants say the court erred: (1) in striking out that part of the answer setting up facts and circumstances sur
The intention of the testator is the controlling factor in the interpretation of a will. When the intention is ascertained from an examination of all its parts the problem is solved. The interpretation of a will is simply a judicial determination of what the .testator intended; and the rules of interpretation and construction for that purpose formulated by the courts in the evolution of jurisprudence through the centuries axe founded on reason and practical experience. It is wise to follow them, bearing in mind always that the intention is the guiding star and when that is clear from a study of the will in its entirety, any arbitrary rule however ancient and sacrosanct applicable to any of its parts must yield to the clear intention. Of course, if the testator' attempts to mate a disposition forbidden by law it will not be éffectuated; as for instance, where the intent is to violate the rule against perpetuities. The intention must be deduced from the words of the will itself. “The true inquiry is, not what the testator meant, to express, but what the words do express.” Couch v. Eastman, 29 W. Va. 784; Wills v. Foltz, 61 W. Va. 262; Neal v. Hamilton, 70 W. Va. 250; Allison v. Allison, 101 Va. 537; Dunham v. Averhill, 45 Conn. 611; Lomax v. Lomax, 218 Ill. 629. Parol evidence to show the intention of the testator in the use and meaning of the words used.is admissible only in cases where there is a latent ambiguity. A latent ambiguity is “that which seemeth certain and without ambiguity for anything that appeareth upon the face of the deed or instrument, but there is some collateral matter out of the deed that breedeth the ambiguity.” Bacon Maxims 23; Hawkins v. Garland, 76 Va. 149; Paxton v. Oil Co., 80 W. Va. 187. “A patent ambiguity is one appearing on the face of the will. If the ambiguity
Is there a latent ambiguity in the will, which demands oral testimony to explain it? We fail to perceive it. The farm goes to George'G., the brother, and as a condition of the devise he is to pa,y the legacy of $3,000 to Cyrus E’., the grandson. There is no question as to whom the other legacies go, the identity of the persons nor the amounts, nor how they shall be paid. There can be no controversy over the intention of the testator to give the residue of his estate to the legatees before named in proportion to the stated amounts given to each. The persons to whom the entire estate goes are named. The ambiguity in clause 17, if any, is patent, and under the rule above stated, it is not permissible to consider oral evidence to aid in its solution. We do not think the court erred in striking out that part of the answer hereinbefore summarized; nor in refusing to consider the oral testimony taken a.t the time of probate and filed as an exhibit with the answer. We must look to the will to determine the testator’s intention as to whom and in what amounts he desired the residue of his estate to go, and invoke to our aid the well known and cardinal rules of construction if the will affords no satisfactory clue to the real intention of the testator.
What language in the will indicates that there was any intention of giving George G. any part of the estate except the'farm “to be his own forever?” There can be none unless we can class him as a legatee under the 17th clause which gives the residue to the “legatees above named.” The rule that we should keep in mind that the law favors such construction as conforms most nearly to the laws of descents and
The words “devise,” “bequeath,” “legatee” and “devisee," when used in a will are technical, and have a reasonably defined legal meaning, and are presumed to be used in their technical sense, unless the contrary clearly appears. Allison v. Allison, 101 Va. 543; King v. Johnson, 117 Va. 49. The verb “devise” used in a will is properly used of realty; and “devisee” is the word regularly used to denote one to whom realty passes. “Bequeath” is the verb used to denote a gift of personalty; and “legatee” is properly used to denote one to whom personalty passes by will. Page on Wills, see. 2. Jarman says: “A legacy is a gift of personalty by will or other testamentary instrument." He quotes the language of Lord Cranworth in Windue v. Windue, 6 De G. M. & G. 549, as follows: “In the first place, the words, ‘legacy' and ‘residuary legatee’ prima facie have reference to personal estate only. There is, indeed, no magic in the words themselves, and if they are so used by a testator they may no doubt be construed as referring to real estate. Any man may use his own nomenclature if he only expresses what he means. I- have not, however, been able to discover any case which satisfies my mind that independently of context you can understand ‘legacy’ or ‘legatee’ or ‘residuary legatee’ as applying to anything but personal estate.” Words applicable exclusively to personal estate have sometimes, by force-of the
We do not perceive any words or phrases in the will which would indicate that the word “legatee” as used therein was used other than in its technical legal sense; and applicable to other than personal estate. The intention to use it as designating a recipient'of real estate is not expressed. The intention to so use it could only be found by necessary implication from the will considered in its entirety. “By necessary implication is meant a probability of intention so strong that an intention contrary to it cannot be imputed to the testator.” Graham v. Graham, 23 W. Va. 36. Counsel for appellant, Geo. G. Brenneman, asserts that the word “legatee” should be held to mean one who receives anything by will, personalty or realty; rather than the narrower technical meaning as one who receives- personal property by will. An able and persuasive brief evidencing much research and learning has been filed to sustain that proposition. It is pointed out that among the populace the ordinary popular meaning of “legatee” is one who is the recipient of property of any description under a will; and it is argued that as neither the testator nor the scrivener, Cooper, were learned in the law the words “above named legatees” occurring in the residuary clause should be construed in their popular sense, and held to include all who had been thereinbefore made recipients of the testator’s bounty; excepting, of course, the heirs of Wm. J. Brennemann, who are expressly limited under the 15th item to Philieey Island. But are we not committed to the rule of construction that where technical words are used - in a will they are presumed to have been used in the technical legal
Applying this rule of construction, how does it operate
We hold that Cyrus E. Brenneman is entitled to partiei-
Affirmed in part; reversed in part.