Ball v. Ball

Lovnsrs, Judge,

dissenting:

I respectfully dissent from the opinion of the Court. My reasons for such dissent center around the third point *867 of the syllabus wherein it is held that the portion of the will disposing of the major portion of testator’s property operated to vest the trustee with title to such property. In my view, the will makes no disposition of testator’s property, except his household goods and tools, which were bequeathed to John Ball, Jr., and his wife. The fourth, fifth, and sixth points of the syllabus, if my conclusion is correct, have no place in the opinion. I think the seventh point of the syllabus is legally correct.

It is necessary to treat the law of wills as a statutory permission for persons to alter the course of descent and distribution provided for by general statute. In this case, we have a contest with John Ball, Jr., and Ruth Ball Grayson, the son and daughter, respectively, of John Ball, Sr., on one side and the beneficiaries of an alleged testamentary trust on the other. The son and daughter assert their rights as heirs at law and distributees under the general statute and would treat that portion of the will of their father relative to a trust as failing to dispose of their father’s property.

Jarman, in his excellent work on wills, states the general rules for construction of wills at page 770, Sixth Edition, Bigelow (page 1654), which reads in part as follows:

“II. That technical words are not necessary to give effect to any species of disposition in a will.

“ * * *

“V. That the heir is not to be disinherited without an express devise or necessary implication; such implication importing, not natural necessity, but so strong a probability that an intention to the contrary cannot be supposed.

“VI. That merely negative words are not sufficient to exclude the title of the heir or next of kin. There must be an actual gift to some other definite object.

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*868 X. The Court will look at the circumstances under which the devisor makes his will, —as the state of his property, of his family, and the like.

“XI. That, in general, implication is admissible only in the absence of, and not to control, an express disposition.

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“XIV. That the rules of construction cannot be strained to bring a devise within the rules of law; * * *

“XIX. That words and limitations may be transposed, supplied or rejected, where warranted by the immediate context, or the general scheme of the will; but not merely on a conjectural hypothesis of the testator’s intention, however reasonable, in opposition to the plain and obvious sense of the language of the instrument.

(( * * *

“XXIII. That where a testator’s intention cannot operate to its full extent, it shall take effect as far as possible.”

See I Harrison, Wills and Administration, page 374, et seq.

Keeping the foregoing rules of construction in mind, I advert to certain cases decided by this Court. In Graham v. Graham, 23 W. Va. 36 , the following language appears in the body of the opinion: “It was held by this Court in Houser v. Ruffner, 18 W. Va. 244 , that in construing wills, words and expressions of doubtful meaning will not be construed, if it can be avoided, so as to create an intestacy. The testator having made his will will be presumed to have intended to dispose of his whole estate, unless the contrary plainly appear. While this is true, there is another rule quite as binding on the court in the construction of a will, viz., that the heir must not be disinherited, unless it is done by the express terms of the will or by necessary implication. (Irwin v. Zane, 15 W. Va. 646 .) The heir at law never takes by the act or in *869 tention of the testator. His.right is paramount to and independent of the will, and no intention of the testator, is necessary to its enjoyment. On the contrary, such right can only be displaced or precluded by direct words or plain intention, evincing a desire upon the part of the testator, that he shall not take, &c. He needs no argument or construction showing intention in his favor to support his claim. They belong to the party claiming under the will and in opposition to him. Augustus v. Seabolt, 3 Metc. (Ky.) 155. In Creswell v. Lanson, 7 Gill. & Johns, 227, it was held, that the heir being favored in law, there should be no strained construction to work a disherison, where the words are ambiguous.”

The statement with reference to necessary implication has been construed in the case of Bartlett v. Patton, 33 W. Va. 71 , 10 S. E. 21 , and carried into a syllabus point in Barker v. Haner, 111 W. Va. 238 , 161 S. E. 566 , in the following language: “ ‘Necessary implication mean[s] so strong a probability of intention that an intention contrary to that imputed to the testator cannot be supposed. The whole will, taken together, must produce the conviction that the testator’s intention was to create the estate raised by implication.’ (Bartlett v. Patton, 33 W. Va. 71 .)”

As a matter of application of a construction of a .will, which does not work a disherison of the heir, in the case of Boisseau and Others v. Aldridges, 5 Leigh 222 , the court refused to give testamentary effect to a writing positively and without ambiguity disinheriting the two sisters of an alleged testator who had married contrary to his wishes, the court holding in that case that the paper writing before it was not a- testamentary paper because it gave no property to any person. The holding in that case seems to follow the general rule that a paper writing merely disinheriting ah heir will not be given testamentary effect; that a testator, in order to disinherit an heir, must dispose of his property to some other person. See Sutherland v. Sydnor (Va.), 6 S. E. 480 .

*870 The phrase in the writing here considered, “my Trustee and Executor, which shall take charge of my estate and dispose of it in the following manner”, can not be relied upon to strengthen the allegedly dispositive portion of the will which is held to have established a testamentary trust. Spurrier v. Hobbs, 68 W. Va. 729 , 70 S. E. 760 . The first point of the syllabus in the opinion in that case is as follows: “Though an introductory clause in a will may express an intention on the part of the testator to dispose of his whole estate, this does not supersede the necessity of his subsequently carrying that intention into effect by an actual disposition.”

A careful analysis of the provisions of John Ball’s will with reference to a testamentary trust fails to disclose any actual words expressly disposing of his property. And hence it follows that if that portion of the will is to be relied upon as necessarily implying a testamentary trust, it must also carry with it the thought that the contrary can not be supposed.

It is entirely conceivable from the words of the will that the testator did not mean to vest in his trustee the actual ownership of the residue of his estate. The words, “take charge”, used in that portion of the will are entirely compatible with the duties of an executor who has been given the power to sell. In the case of Linton v. Linton, 114 W. Va. 711 , 173 S. E. 778 , this Court held that if real estate is devised to an executor with power to sell the same and distribute the proceeds as directed by the will, the legal title is vested in the executor. On the other hand, in the body of the opinion at page 713, the Court quotes with approval the language used by this Court in Milhollen v. Rice, 13 W. Va. 510, 534 , as follows: “ ‘Where a testator devises land to his executors to sell, the executors take a fee simple estate in the lands. But where a testator devises, that his executor shall sell his land, or that his lands shall be sold by his executor, no estate is thereby conferred on the executor; but he has merely a power to sell.’ Milhollen v. Rice, 13 W. Va. 510, 534 . This is the general rule. 4 Kent’s Commentaries *871 (14th Ed.), p. 372; 11 Am. and Eng. Ency. of Law (2d Ed.), p. 1035.” So, at most, the executor in the instant case was only given a power to sell the land and took no title to it. See Coles’ Heirs v. Jamerson (Va.), 71 S. E. 618 .

I think the proposition that no technical words are necessary in a will to effect a disposition of property is sound, but there must be language from which it appears th'at a testator intended to dispose of his property and vest title in a trustee. “He [the testator] may have intended so, but he did not say so.” Voluit, sed non dixit. Black’s Law Dictionary, 4th Ed., page 1746.

The nearest approach to the instant case is that of Moon v. Stewart (Ohio), 101 N. E. 344 , Ann. Cas. 1914A, 104. The first item of the will in that case provided for the payment of debts. The second item read as follows: “I hereby make my two granddaughters, Lulu Stewart and Ella Breakfield, each equal heirs with my own children.” In that case the Court held that the language was sufficient to make the two granddaughters named in the second item devisees under the will.

I do not think that the general statement, partially quoted in the Court’s opinion, from 54 Am. Jur., Trusts, Section 65, is sufficient to support the conclusion reached in this case. An examination of the cases cited in support of that general statement discloses many divergen-cies from the instant case.

In the case of Cummings v. Cummings (Mass.), 16 N. E. 401 , the words, “give, devise, bequeath, direct,” and “It is my will that”, appear in all of the items of the will quoted in the court’s opinion. Clearly, they are words of disposition. In the case of Sherwin v. Smith (Mass.), 185 N. E. 17 , the phrases, “I bequeath and devise as follows”, “I also give and bequeath”, and “The rest and residue I direct to be equally divided * * clearly are words of disposition, and it is unnecessary to search for a necessarily implied meaning. In the case of In the Matter of the Estate of Prosper A. Pierce (Wis.), 14 N. W. *872 588 , the first item of the will provided, “I give, devise and bequeath to my wife * * *”. The sixth item of the will considered by the Court contained the words, “I give, devise and bequeath to my two sons * * In Welch v. Caldwell, 226 Ill. 488 , 80 N. E. 1014 , the Court considered the eighth, ninth, tenth and last items of the will of the testator. In the eighth and ninth items the testator used the words, “I direct”. In the tenth item he used the words, “I hereby authorize.” In the last part of his will, in positive language, he appointed his wife to be his executrix. It was also urged in that case that the eighth and ninth items of the will were void because of the uncertainty of the objects and beneficiaries of the gifts, which is a far different issue from the problem here presented.

In Heiseman v. Lowenstein (Ark.), 169 S. W. 224 , the Court dealt with words and phrases which are somewhat precatory and held the dispositions set forth in the long will valid. The opinion in that case deals mostly with the powers of a personal representative. In Sherlock v. Thompson (Iowa), 148 N. W. 1035 , the sixth, seventh and eighth items of the will contained the words, “I give, devise and bequeath”. In Booth v. Krug (Ill.), 14 N. E. 2d 645 , the testator used such words as “It is my will”, “The executors of this will are hereby authorized and directed”, etc.

It will thus be seen from an examination of the cases cited in the Court’s opinion as supporting the general statement that the language in the testamentary writings considered in those cases is varied. That brings to mind an accepted theory in construction of wills that seldom is one will case a precedent to aid in the construction of another.

I fail to see any language in the will here considered which would in any way indicate by direct expression or by necessary implication any intention on the part of the testator to dispose of any of his estate otherwise than the household goods and tools. I think that the testator died intestate as to the bulk of his property, notwithstanding the presumption as to intestacy.

*873 A will may be valid in part and invalid in part. See-57 Am. Jur., Wills, Section 38.

I -think that the Court’s opinion in this case establishes a trust on weak implications and thereby disinherits the heirs. I would give effect to accepted rules of construction and hold that the will in this case was sufficient to-appoint an executor who has the duty of paying the testator’s debts, and possibly to sell his land and distribute-the proceeds, but that no duties of a trustee would devolve upon it since there is no trust res to which the trust could attach. “A trust res is necessary for the creation of a trust.” Casualty Co. v. Fuel Co., 123 W. Va. 541 , 17 S. E. 2d 51 , 137 A.L.R. 488 .

I would affirm the trial court.