42 W. Va. 402 | W. Va. | 1896
On the 9th day of March, 1892, Ellen C. Ross, of Harrison county, executed her last will and testament, which was in her own handwriting, and appointed William E. Jolliff and James Dunkin as executors thereof, and said James Dunkin qualified as sole executor of said will, and on the first Monday in April, 1893, said executor filed a bill in the circuit court of Harrison county, praying, among other things, a construction and interpretation of said will, and a settlement of his accounts as such executor before one of the commissioners of said court.
The clauses of the will concerning which difficulty was found in arriving at a proper construction read as follows: “I bequeath one thousand to the M. E. Church school situated in Buckhannon. My bank stock to the one who cares for me in my last sickness, if a niece on my side. The balance of property, land, and money in notes to be equally divided between my heirs and my husband’s heirs, leaving out Mrs. Mary Ann Hoff, as she is already provided for. I bequeath five thousand to the M. E. Church Foreign Missionary Society ($5,000) to be paid over by W. Sheehy, and delivered to him in charge to pay over to society as a memorial fund in the name of George E. Ross and Ellen C.
It seems to be conceded that the ruling of the court as to the clause giving fifty three acres of land to the trustees of the Methodist Episcopal Church at Bridgeport for twenty years, and then to Cora E. Calvert, holding the same to be void as a devise to the said church for uncertainty; and also as to the devise of “one thousand dollars to Mary Ann Hoff; at her death to be put in the hands of the trustees of the M. E. Church at West Milford, to lend out as a permanent fund to support the preacher of that church,” — is correct, but, as no question is raised in regard thereto either in the assignment of error or in the argument, we express no opinion in reference thereto.
Let us next inquire as to the ruling of the court with reference to the other clauses about which there is a controversy, and first as to the bequest of one thousand dollars to the M. E. Church school situated in Backhannon; and, while it is true it appears that there is no school in the town of Buckhannon called the “M. E. Church school,” the question for consideration is whether it is competent to show by extrinsic testimony what school the testatrix in
Now, the first question for our consideration is whether extraneous testimony can be allowed to determine the object of a testator’s bounty where a mistake occurs in the name or designation, or the object of the bequest is involv
The next clause which claims our attention is what is termed in the briefs of counsel the “residuary clause,” or clauses, whereby the residuum is left “to be equally divided between my heirs and my husband’s heirs.” And again, in a codicil we find these words: “The balance of property not willed, land, etc. to be equally divided among Geo. T.
In view of these authorities, indicating, as we think, the true rule upon the questions involved, and looking at the surrounding circumstances shown by the testimony, I am led to the conclusion that the decree complained of, so far as it holds the bequest of one thousand dollars to the M. E. Church School situated in Buekhannon is void, should be reversed, and we hold that said bequest was intended for the West Virginia Conference Seminary at Buckhan-non, and should be paid by the executor of said testatrix to those authorized by law to receive for said institution; and we affirm so much of said decree as holds that the bequest of five thousand dollars to the M. E. Church Foreign Missionary Society to be paid over by William Sheehy, and delivered to him in charge to pay over to said society as a memorial fund in the name of George T. Ross and Ellen C. Ross, was intended by the testatrix to be a bequest to the Missionary Society of the Methodist Episcopal Church, an incorporated body under the laws of the state of New York, and was a valid bequest to said society, and that said amounts, together with interest thereon from and after one year from the date of the death of said testatrix, should be paid over to said seminary and said missionary society. And said decree is also affirmed as to the manner in which it construes the clauses spoken of as the “residuary clauses,” one of which reads: “The balance of property, land, and money in notes to be equally divided between my heirs and my husband’s heirs, leaving out Mrs. Mary Ann Hoff, as she is already provided for;” and the clause which reads as follows: “The balance of property not willed, land, etc., to be equally divided among Geo. T. Ross’ heirs and my heirs;” and as to the other portions of the decree, uncontroverted, we express no opinion.
Reversed in part, and affirmed in part.