Thomas S. and Teresa S. Johnson v. Bertha Kirby

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA

January 2013 Term

FILED

February 25, 2013

released at 3:00 p.m.

No. 11-1105 RORY L. PERRY II, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA

THOMAS S. AND TERESA S. JOHNSON,

Plaintiffs Below, Petitioners

v.

BERTHA KIRBY,

Defendant Below, Respondent

Appeal from the Circuit Court of Monroe County

Honorable Robert A. Irons, Judge

Civil Action No. 09-C-71

AFFIRMED

Submitted: January 9, 2013

Filed: February 25, 2013

Barry L. Bruce, Esq. Jeffry A. Pritt, Esq.

Jessica R. Church, Esq. Union, West Virginia

Barry L. Bruce & Associates Attorney for Respondent

Lewisburg, West Virginia

Attorneys for Petitioners

JUSTICE LOUGHRY delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. “‘A circuit court’s entry of summary judgment is reviewed de novo.’ Syllabus

point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).” Syl. Pt. 1, Toth v. Board

of Parks and Recreation Com’rs., 215 W.Va. 51, 593 S.E.2d 576 (2003).

2. “‘“Statutes which relate to the same subject matter should be read and applied

together so that the Legislature’s intention can be gathered from the whole of the

enactments.” Syl. Pt. 3, Smith v. State Workmen’s Compensation Commissioner, 159 W.Va.

108, 219 S.E.2d 361 (1975).’ Syl. pt. 4, State ex rel. Fetters v. Hott, 173 W.Va. 502, 318

S.E.2d 446 (1984).” Syl. Pt. 1, Kimes v. Bechtold, 176 W.Va. 182, 342 S.E.2d 147 (1986).

3. Pursuant to West Virginia Code § 41-1-6 (2010), if a testator divorces after

executing a will in which the testator’s spouse is the sole beneficiary of his or her estate, the

divorce automatically revokes the will, unless the will expressly provides otherwise, and the

estate passes in accordance with the statutes of intestate succession as if the former spouse

failed to survive the decedent.

LOUGHRY, Justice:

Petitioners Thomas H. Johnson (hereinafter “Mr. Johnson”) and Teresa S.

Johnson (hereinafter “Mrs. Johnson”) appeal an Amended Order Granting Partial Summary

Judgment entered June 23, 2011, in the Circuit Court of Monroe County, in which the circuit

court found Respondent Bertha Kirby to be the sole heir to the Estate of Jesse Francis Kirby,

her son, thereby quieting title in her favor to certain real property previously conveyed to the

petitioners. Additionally, the circuit court denied summary judgment on the petitioners’

claim for unjust enrichment. In this appeal, the petitioners contend that the six-month period

of limitations set forth in West Virginia Code § 45-1-11 (2010) applies to preclude the

respondent from claiming title to the subject property. This Court has carefully considered

the briefs and arguments of the parties, the appendix record, and the applicable legal

authority. For the reasons set forth below, the order of the circuit court is affirmed.

I. Facts and Procedural Background

The relevant facts of this case are, for the most part, undisputed. On March 15,

2006, Jesse Francis Kirby (hereinafter “the decedent”) executed a one-page holographic Last

Will and Testament in which he left all of his worldly possessions to his wife, Brenda Kirby

(hereinafter “Ms. Kirby”). The decedent and Ms. Kirby divorced by Final Divorce Order

entered September 1, 2006, and, subsequent thereto, on November 26, 2007, the decedent

died.

1

On December 5, 2007, Ms. Kirby presented the decedent’s will for probate in

the Office of the County Clerk of Monroe County and, on that same date, the county clerk

entered a Probate Order admitting the will “to record as the Last Will and Testament of said

Jesse Francis Kirby deceased.” In connection with the probate of the will, Ms. Kirby

completed the Appraisement of Estate and the Fiduciary Record, in which she indicated that

the decedent’s marital status at death was “divorced” and that she was his former spouse.1

The county clerk qualified Ms. Kirby as “Executor” of the Estate.2 Thereafter, on December

20, 2007, the county clerk’s office caused to be published in the local newspaper a notice of

the administration of the decedent’s estate, including the name and address of Ms. Kirby and

identifying her as “Executrix.”

On June 1, 2008, Ms. Kirby entered into a listing agreement with Mr. Johnson,

a real estate agent, and his company, Coldwell Banker Stuart & Watts Real Estate, for the

purpose of selling the real property devised to her in the decedent’s will. The listing price

1

Both documents were signed and acknowledged by Ms. Kirby and recorded in the

county clerk’s office.

2

See W.Va. Code § 44-1-2 (2010) (regarding appointment of administrator with will

annexed if there is no executor appointed by will) and W.Va. Code § 44-1-4 (2010)

(regarding who shall be granted administration). We note that an “executor” is a person

appointed by a testator to carry out the provisions of the testator’s will, see W.Va. Code § 44­

1-1 (2010), but that, in the case of the decedent’s will, no executor was appointed therein.

However, to avoid confusion and because Ms. Kirby was consistently referred to as

“Executor” or “Executrix” throughout this matter, we will also refer to her in that manner.

2

was $39,900.00. According to Mr. Johnson, after the property was listed for sale, he learned

there were disputes with a neighbor concerning a boundary line and the ownership of a well

serving the property. Mr. Johnson testified that he advised Ms. Kirby that the disputes “made

the property a tough sell at that point” and suggested that she get a survey of the property.

He further testified that she told him she could not afford a survey and asked Mr. Johnson

if he would buy the property. Thereafter, Mr. and Mrs. Johnson, husband and wife, agreed

to purchase the property for $11,500.00.

By deed dated July 1, 2008, Ms. Kirby conveyed to the petitioners the subject

property, as the sole heir of the Estate of Jesse Francis Kirby, described as two tracts on Dark

Hollow Road, Wolf Creek District, Monroe County, West Virginia. In a letter to the

petitioners dated July 17, 2008, William D. Goodwin, the attorney who both drafted the

above-described deed and conducted a title search of the subject property, indicated, inter

alia, that “subject to [his] preliminary title report dated June 30, 2008, free and clear title is

conveyed as to” the subject real property.3

3

According to a very brief excerpt of the respondent’s deposition included in the

appendix record herein, the respondent appeared at the county clerk’s office within one week

of Ms. Kirby’s appointment as Executor. The respondent testified that she told the clerk that

Ms. Kirby and the decedent, her son, were divorced and that Ms. Kirby “had no rights to” the

house on the subject property. She further testified that the county clerk “told me it was

legal, and I said, it’s not, because they were divorced, and I knew at the time what’s said in

the divorce, that he had got the house and she had got the contents of it in the divorce

settlement, so she had no rights to the house.” The respondent testified that the county clerk

“was [a] real smart-aleck with me. He said it was legal and it was going to stay that way.”

3

On August 25, 2008, the respondent filed an Objection to Final Settlement,

Petition for Removal of Executor, and Demand for Full Accounting (hereinafter “Objection

to Settlement”)4 on the ground that her son’s divorce from Ms. Kirby subsequent to the

execution of his will and prior to his death automatically revoked any disposition of property

to her.5 More specifically, the respondent argued that, pursuant to West Virginia Code § 41­

1-6 (2010), she was the sole and lawful heir to the subject property. West Virginia Code §

41-1-6(a) provides as follows:

If after executing a will the testator is divorced or his

marriage annulled, the divorce or annulment revokes any

disposition or appointment of property made by the will to

the former spouse, any provision conferring a general or

special power of appointment on the former spouse, and any

nomination of the former spouse as executor, trustee,

conservator, or guardian, unless the will expressly provides

otherwise. Property prevented from passing to a former

spouse because of revocation by divorce or annulment passes

4

“The jurisdiction for probate matters, such as the appointment and qualification of

personal representatives, guardians, committees and curators, and the settlement of their

accounts, has been vested by the Legislature in the county commissions or tribunals existing

in lieu thereof or the officers of such county commissions or tribunals . . . .” Haines v.

Kimble, 221 W.Va. 266, 274, 654 S.E.2d 588, 596 (2007) (footnote omitted). See W.Va.

Code § 7-1-3 (2010) (providing that “[t]he county commissions . . . . shall have jurisdiction

in all matters of probate, the appointment and qualification of personal representatives,

guardians, committees, curators and the settlement of their accounts . . . .”).

5

In her brief to this Court and during the hearing on the parties’ cross motions for

summary judgment, the respondent represented that at the time Ms. Kirby conveyed the

property to the petitioners by deed dated July 1, 2008, and the respondent filed her Objection

to Settlement on August 25, 2008, the Estate “remained open and unsettled.” The petitioners

do not dispute the respondent’s representation in this regard.

4

as if the former spouse failed to survive the decedent,6 except

that the provisions of section three, article three, chapter

forty-one do not apply, and other provisions conferring some

power or office on the former spouse are interpreted as if the

spouse failed to survive the decedent. If provisions are revoked

solely by this section, they are revived by testator's remarriage

to the former spouse. For purposes of this section, divorce or

annulment means any divorce or annulment which would

exclude the spouse as a surviving spouse. A decree of

separation which does not terminate the status of husband and

wife is not a divorce for purposes of this section. No change of

circumstances other than as described in this section revokes

a will.

Id. (emphasis and footnote added). The respondent thus argued that because the decedent

left no children, she was his sole heir at law by operation of West Virginia Code § 41-1-6;

6

In this case, the following provisions of West Virginia Code § 42-1-3a (2010) are

relevant:

Any part of the intestate estate not passing to the

decedent’s surviving spouse under section three

of this article, or the entire intestate estate if there

is no surviving spouse, passes in the following

order to the individuals designated below who

survive the decedent:

(a) To the decedent’s descendants by

representation;

(b) If there is no surviving descendant, to the

decedent’s parents equally if both survive, or to

the surviving parent[.]

It is undisputed that the decedent had no children and that the respondent is his only

surviving parent.

5

that Ms. Kirby should be immediately removed as Executor because “she has absolutely no

interest in [the] Estate;” and that Ms. Kirby should be required to provide a full accounting

of all estate property to the respondent.

On April 1, 2009, the Monroe County Commission ordered that, pursuant to

West Virginia Code § 41-1-6,7 the decedent’s Estate should pass to his heirs at law as if he

had no will; that the respondent is the sole heir to the Estate of her son; that Ms. Kirby be

removed as Executrix because she is not an heir to the Estate and, thus, “is not included in

the class of persons entitled to be appointed as administrator” thereof; that the respondent be

appointed as the personal representative of the Estate; and that Ms. Kirby provide the county

commission with an accounting of the Estate within thirty days.8

On September 9, 2009, the petitioners filed a Petition to Quiet Title to Real

Estate, Creditors’ Suit Against the Estate of Jesse Francis Kirby, and Claim for Unjust

Enrichment, in the Circuit Court of Monroe County. The petitioners alleged that Ms. Kirby

properly administered the Estate and she acted in good faith when she sold the subject

7

The April 1, 2009, order of the county commission incorrectly references West

Virginia Code § 44-1-6 rather than West Virginia Code § 41-1-6.

8

Neither the parties’ briefs nor the appendix record indicate when or in what manner

the petitioners learned that the respondent had been named the sole heir of the Estate and

Executor by order of the county commission.

6

property to them “in order to pay debts and claims against the estate.”9 Moreover, according

to the petitioners, they incurred costs and expenses, including the purchase price and the

improvements they made to the property,10 in the total amount of $28,583.14. The petitioners

maintained that if the circuit court determined that the deed was void, the respondent would

be unjustly enriched by the attendant increased value of the property. The petitioners further

stated that they were bona fide purchasers for value and that their purchase of the subject

property was an arm’s length transaction; however, from our review of the appendix record,

the petitioners failed to present any legal argument on this issue nor did the circuit court

address it in its final order.11

9

Ms. Kirby used the proceeds from the sale of the subject property to satisfy a claim

for the decedent’s funeral expenses in the amount of $6,797.07, as well as to pay the

property’s real estate taxes. According to the petitioners, a balance of $3,377.40 from the

sale of the subject property remains in escrow.

The petitioners also argued that “the sale made by Brenda Kirby as Executrix of the

Estate of Jesse Francis Kirby under the voidable Will and having been given the powers by

the County Commission to act as Executrix, the Deed to Petitioners is valid[.]” However,

as indicated above, the deed to the petitioners dated July 1, 2008, clearly states that Ms.

Kirby conveyed the subject property as “the sole heir of the ESTATE OF JESSE FRANCIS

KIRBY.”

10

Also included in the appendix record was another brief excerpt of the respondent’s

deposition in which she testified that she saw someone painting the house on the subject

property at some point before she filed the Objection to Settlement.

11

Likewise, on appeal before this Court, the petitioners again claim that they were

bona fide purchasers for value of the subject property and that they did not have notice that

Ms. Kirby had no title to convey. However, whether the petitioners were bona fide

purchasers for value without notice is not raised as an assignment of error nor is it otherwise

argued in this appeal.

7

The respondent filed a Response and Counter-Petition, denying the allegations

raised therein, and also arguing, in relevant part, that she was the sole heir to the Estate of

her son; that Ms. Kirby had no hereditary interest in or title to the subject real property to

convey to the petitioners; that the respondent did not join in the conveyance of the property

by deed to the petitioners; and that the deed to the petitioners constitutes a cloud upon the

respondent’s title and should be declared null and void and set aside so as to remove such

cloud.12

The parties filed cross motions for summary judgment and on March 21, 2011,

the circuit court held a hearing on the matter. In an Amended Order Granting Partial

Summary Judgment entered June 23, 2011, the circuit court determined that the facts clearly

showed that, pursuant to West Virginia Code § 41-1-6, “Brenda Kirby was not the sole heir

of the Estate of Jesse F. Kirby as his ‘wife,’ and this fact was, or should have been known

to the Petitioners at the time of their purchase.” According to the circuit court, the decedent’s

marital status at his death was a matter of public record prior to Ms. Kirby’s execution of the

deed to the petitioners. The circuit court further concluded that the respondent was

12

The respondent also alleged that Mr. Johnson, in his capacity as the real estate agent

retained by Ms. Kirby to sell the subject property, had a fiduciary responsibility to the Estate

and that the conveyance of the property to himself and to his wife for the purchase price of

$11,500.00 was below fair market value and unfair and inequitable to the Estate. According

to the respondent, the conveyance was “therefore voidable upon the election of the Estate,

with the Petitioners to bear any loss incurred.”

8

acknowledged to be the only surviving heir of the Estate of her son by order of the Monroe

County Commission, which order also replaced Ms. Kirby with the respondent as Executrix.

Moreover, because Ms. Kirby did not possess title to convey to the petitioners, and because

the respondent did not join in the deed to the petitioners, the circuit court concluded that title

to the subject real property should be quieted in the respondent’s favor.13 Additionally, the

circuit court denied summary judgment as to the petitioners’ claim for unjust enrichment.14

It is from the circuit court’s June 23, 2011, order, that the petitioners now appeal.

II. Standard of Review

In this appeal, we are asked to review a circuit court’s entry of partial summary

13

See generally Hyman v. Swint, 94 W.Va. 627, 631, 119 S.E. 866, 867 (1923) (stating

that “[i]n a suit to quiet title to land, the plaintiff should, as a general rule, show three things:

(1) that plaintiff has a valid legal and equitable title to the premises; (2) that he has actual

possession thereof; (3) that the defendant lays some claim thereto, stating the nature thereof,

so far as it is within plaintiff’s knowledge”).

14

In its June 23, 2011, order, the circuit court concluded that “[q]uestions of fact exist

as to what the Petitioners’ beliefs were at the time they made the improvements to the

property and also on whether [the respondent] knew of the improvements. The Court

believes that further inquiry concerning the facts is desirable to clarify whether it would be

inequitable or unconscionable to permit [the respondent] to avoid payment for the

improvements placed on the property by [the petitioners].” This Court has generally held that

“‘[t]he entry of an order denying a motion for summary judgment made at the close of the

pleadings and before trial is merely interlocutory and not then appealable to this Court.’”

State ex rel. Arrow Concrete Co. v. Hill, 194 W.Va. 129, 245, 460 S.E.2d 54, 60 (1995)

(quoting Syllabus, Wilfong v. Wilfong, 156 W.Va. 754, 197 S.E.2d 96 (1973)). Accordingly,

that portion of the circuit court’s June 23, 2011, order denying the petitioners’ motion for

summary judgment on their claim for unjust enrichment is interlocutory and not presently

appealable to this Court.

9

judgment. It is well established that “‘[a] circuit court’s entry of summary judgment is

reviewed de novo.’ Syllabus point 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755

(1994).” Syl. Pt. 1, Toth v. Board of Parks and Recreation Com’rs., 215 W.Va. 51, 593

S.E.2d 576 (2003).

III. Discussion

The petitioners argue that, under West Virginia Code § 41-5-11, a complaint

to impeach a will must be filed within six months from the date of the order of probate

entered by the county commission. It is the petitioners’ contention that because the

respondent’s August 25, 2008, Objection to Settlement was filed more than six months after

entry of the December 5, 2007, order admitting the will to probate, the objection was time-

barred and the county commission was without jurisdiction to consider it.15

West Virginia Code § 41-5-11 provides as follows:

After a judgment or order entered as aforesaid in a

15

As their first assignment of error, the petitioners argue that “[t]he Circuit Court erred

in upholding the County Commission’s decision to accept the challenge to the probated Will

because the Commission lacked jurisdiction to make that decision, thus the Circuit Court also

lacked jurisdiction.” The petitioners’ argument includes an incorrect assertion. The circuit

court did not “uphold” the April 1, 2009, order of the Monroe County Commission because

that order was not appealed to the circuit court. Moreover, it was the petitioners who

instituted the present (and wholly separate) action in the circuit court by filing a petition to

quiet title of the subject property.

10

proceeding for probate ex parte,16 any person interested who

was not a party to the proceeding, or any person who was

not a party to a proceeding for probate in solemn form, may

proceed by complaint to impeach or establish the will, on

which complaint, if required by any party, a trial by jury shall be

ordered, to ascertain whether any, and if any, how much, of

what was so offered for probate, be the will of the decedent.

The court may require all other testamentary papers of the

decedent to be produced, and the inquiry shall then be which one

of all, or how much of any, of the testamentary papers is the will

of the decedent. If the judgment or order was entered by the

circuit court on appeal from the county commission, such

complaint shall be filed within six months from the date thereof,

and if the judgment or order was entered by the county

commission and there was no appeal therefrom, such

complaint shall be filed within six months from the date of

such order of the county commission. If no such complaint

be filed within the time prescribed, the judgment or order

shall be forever binding. Any complaint filed under this

section shall be in the circuit court of the county wherein

probate of the will was allowed or denied.

16

This Court has previously explained that

[t]here are two procedures for probate set forth in chapter 41,

article 5 of the West Virginia Code. W.Va. Code, 41-5-5 [1923]

provides for probate in solemn form, which requires that notice

be given to all heirs and persons having interest in the will.

Barone v. Barone, 170 W.Va. 407, 408, 294 S.E.2d 260, 261

(1982). The second procedure, which is found under W.Va.

Code, 41-5-10 [1923], is referred to as ex parte. Under the ex

parte procedure, the county commission, or the clerk in vacation

of the county commission, may proceed to hear and determine

whether to admit or refuse a will to probate without giving

notice of its action.

Cary v. Riss, 189 W.Va. 608, 611, 433 S.E.2d 546, 549 (1993) (footnotes omitted). In this

case, the decedent’s will was admitted under the ex parte procedure.

11

Id. (emphasis and footnote added).

In support of their argument, the petitioners rely exclusively on Cowan v.

Cowan, 133 W.Va. 115, 54 S.E.2d 34 (1949), wherein the decedent’s will, naming his wife

as his sole beneficiary and executrix, was admitted to probate even though it lacked attesting

witnesses. Id. at 117, 54 S.E.2d at 35. More than three years later, the decedent’s half

brother, who would have been the decedent’s heir at law in the event of intestacy, brought

suit to partition certain land devised to the decedent’s wife under the will and for an

accounting. Id. Although the Cowan Court concluded that the testamentary paper at issue

was not a valid will because it was not properly witnessed, we emphasized that

[t]he validity of [the decedent’s] will arises only as an

incident to the proof of title to his real estate. A paper

admitted to probate is not subject to collateral attack, although

it may be under our statute directly attacked by a proceeding in

chancery with bill filed within two years after the date of its

probate17 by a person not made a party to the probate

proceeding. . . . Treating this proceeding as an attempted direct

attack upon the validity of the will of [the decedent], we are of

the opinion that Code, 41-5-11, bars its entertainment after the

lapse of two years.

Id. at 120, 54 S.E.2d at 37 (emphasis and footnote added). See Syl. Pt. 3, in part, Barone v.

Barone, 170 W.Va. 407, 408, 294 S.E.2d 260, 261 (1982) (holding that “[t]raditional will

17

At the time of the decision in Cowan, West Virginia Code § 41-5-11 provided that

the applicable period of limitations for impeaching a will was two years. In 1993, the

Legislature amended the statute such that the period of limitations became one year. In 1994,

the statute was again amended, reducing the limitations period to six months.

12

contests challenging admission to probate of a particular document or portions thereof are

limited by the two-year [now six-month] statute of limitations in W.Va. Code, 41-5-11.”).

Thus, in Cowan, this Court concluded that “[t]he probate was effective to establish the paper

in question as the will of [the decedent] and that paper did vest title to the real estate of which

he died seised and possessed in [his wife][.]” 133 W.Va. at 121, 54 S.E.2d at 37.

In the case sub judice, the petitioners argue that although, pursuant to West

Virginia Code § 41-1-6, the decedent’s will became invalid when the decedent and Ms. Kirby

divorced prior to the decedent’s death, the December 5, 2007, order admitting the will to

probate “served to validate” it and make it “effective” under Cowan. The petitioners further

argue that the respondent’s Objection to Settlement was a collateral attack on the will that

was time-barred under Cowan and West Virginia Code § 41-5-11 because it was filed more

than six months after entry of the county commission’s December 5, 2007, probate order and,

thus, the county commission was without jurisdiction to consider it.

The petitioners have misapprehended the effect that the divorce of the decedent

and Ms. Kirby had upon the decedent’s will under West Virginia Code § 41-1-6 and, in turn,

have misapplied Cowan to the facts of this case. As indicated above, West Virginia Code

§ 41-1-6 states, in relevant part, that “[i]f after executing a will the testator is divorced . . .

the divorce . . . revokes any disposition . . . of property made by the will to the former

13

spouse” and the “[p]roperty prevented from passing to a former spouse because of revocation

by divorce . . . passes as if the former spouse failed to survive the decedent . . . .” Id. West

Virginia Code § 41-1-6 further states that “[n]o change of circumstances other than as

described in this section revokes a will.” Id. This latter provision clearly contemplates that

if, after executing a will in which a testator devises his or her entire estate to his or her

spouse, and the testator later is divorced, the will is automatically revoked by operation of

law and the decedent’s estate passes as if the former spouse failed to survive the decedent.

Such expression of legislative intent is reinforced by West Virginia Code § 41-1-7 (2010),

which states that

[n]o will or codicil, or any part thereof, shall be revoked,

unless under the preceding section [§ 41-1-6], or by a

subsequent will or codicil, or by some writing declaring an

intention to revoke the same, and executed in the manner in

which a will is required to be executed, or by the testator, or

some person in his presence and by his direction, cutting,

tearing, burning, obliterating, canceling or destroying the same,

or the signature thereto, with the intent to revoke.

W.Va. Code § 41-1-7 (emphasis added).

This Court has previously held that “‘“[s]tatutes which relate to the same

subject matter should be read and applied together so that the Legislature’s intention can be

gathered from the whole of the enactments.” Syl. Pt. 3, Smith v. State Workmen’s

Compensation Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975).’ Syl. pt. 4, State ex

rel. Fetters v. Hott, 173 W.Va. 502, 318 S.E.2d 446 (1984).” Syl. Pt. 1, Kimes v. Bechtold,

14

176 W.Va. 182, 342 S.E.2d 147 (1986). Indeed, “statutes which are not inconsistent with

one another, and which relate to the same subject matter are in pari materia. Statutes in pari

materia should be read and construed together, the primary purpose being to ascertain the

intention of the Legislature.” State ex rel. Miller v. Locke, 162 W.Va. 946, 947, 253 S.E.2d

540, 542 (1979). See Manchin v. Dunfee, 174 W.Va. 532, 536, 327 S.E.2d 710, 714 (1984)

(stating that the rule of in pari materia “is most applicable to those statutes relating to the

same subject matter which . . . refer to each other”). In consideration of the foregoing

principles, this Court now holds that, pursuant to West Virginia Code § 41-1-6, if a testator

divorces after executing a will in which the testator’s spouse is the sole beneficiary of his or

her estate, the divorce automatically revokes the will, unless the will expressly provides

otherwise, and the estate passes in accordance with the statutes of intestate succession as if

the former spouse failed to survive the decedent. Accordingly, because Ms. Kirby was the

sole beneficiary named in the decedent’s will, the divorce automatically revoked the will

pursuant to West Virginia Code § 41-1-6, and the decedent’s estate passed as if Ms. Kirby

failed to survive him, in accordance with West Virginia Code § 42-1-3a.

Based upon the foregoing, it is clear that the case sub judice is readily

distinguishable from the circumstances existing in Cowan. In the present case, the

decedent’s entire will was automatically revoked by operation of law when he and Ms. Kirby

divorced. As such, the will was of no force and effect when presented for probate. As this

15

Court has previously observed, West Virginia Code § 41-5-11 “contemplates a test of the

validity of the will. The word ‘validity’ has reference only to the validity of the probated

paper as a testament, not to the validity of its provisions.” Mauzy v. Nelson, 147 W.Va. 764,

770, 131 S.E.2d 389, 392 (1963). Thus, the period of limitations set forth in West Virginia

Code § 41-5-11 simply does not apply to bar the respondent’s Objection to Settlement and

the county commission had jurisdiction to order that the decedent’s estate “should pass to his

heirs as if he had no Last Will and Testament[,]” pursuant to West Virginia Code § 41-1-6.18

Accordingly, we find no error in the circuit court’s June 23, 2011, partial summary judgment

order quieting title in favor of the respondent.19

18

Finally, we note that the argument posited by the petitioners would require this Court

to perpetuate an error that first occurred when the county commission mistakenly admitted

the decedent’s will to probate. Clearly, the county commission failed to recognize that, under

West Virginia Code § 41-1-6, the will—which left the decedent’s entire estate to Ms. Kirby,

his then wife—was automatically revoked when the couple divorced and was, thus, void ab

initio. Despite Ms. Kirby’s unequivocal disclosures on documents prepared, filed, and

recorded in connection with the probate process that she and the decedent were divorced at

the time of his death, Ms. Kirby was, nevertheless, appointed executor of an estate in which

she had no interest. Thereafter, when a title search of the subject property was conducted,

the dispositive legal effect that the divorce had upon the will and Ms. Kirby’s lack of title to

the property were again overlooked. The county commission thus properly rectified the

oversight in its April 1, 2009, order, as discussed above.

19

In light of our holding that the circuit court properly concluded that the respondent

is the sole heir of the decedent’s estate and that title to the subject real property should be

quieted in the respondent’s favor, we need not address the petitioners’ contention that the

circuit court committed error in removing Ms. Kirby as Executor of the Estate.

16

IV. Conclusion

For the reasons set forth above, the June 23, 2011, order of the Circuit Court

of Monroe County is hereby affirmed.

Affirmed.

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