"The phrase 'entire property’ has been utilized by this Court to more precisely define what constitutes a fee simple estate”
How later courts described this case
- "The phrase 'entire property’ has been utilized by this Court to more precisely define what constitutes a fee simple estate”
Written by the judges who cited it.
The opinion
NEELY, Justice,
dissenting:
I dissent to the majority’s holding today simply because I find that their conclusions run contrary to the intent of both testators in their irrevocable joint will. It is reasonable for married couples to make wills where each leaves the surviving spouse property for life, with the power to invade the corpus, but providing that whatever is leftover shall pass to specific beneficiaries. The holding of the majority today is precisely what the Sanders feared would result if they did not enter into a joint will equally dividing their estate among their heirs. Both parties consented to this contractual arrangement and it is not for the court to allow the surviving spouse’s later holographic will to change the intent of both the testators and create in the surviving spouse any more than a life estate:
“Wills should be construed with the view of determining the true intent of the testator. The nature, character and extent of an estate created must be ascertained according to this intention as disclosed by the language of the entire will, taking into consideration the circumstances under which it was made, exclusive of the oral statements of the testator.”
Ferguson v. Patterson, 191 F.2d 584 (10th Cir.1951).
The Sanders entered into their joint will with the specific intent of making sure that their children from former marriages would be taken care of by the surviving spouse and that the children would inherit the remaining property of the estate upon the death of the surviving spouse. Allowing only Mrs. Sanders’ son to inherit the property deprives Mr. Sanders’ children of their rightful inheritance as intended by both testators in their joint will.
I recognize the majority’s rule that a will should be construed as conferring on a devisee the greatest estate that the terms permit and that when an estate is given in one part of a will in clear terms it cannot be taken away or cut down by later terms not equally clear. But, such rules are subordinate to the rule that every part of a will should be harmonized and given effect if possible so as to enforce the dominant intention of the testators manifested by the entire will. Tutunjian v. Vetzigian, 64 N.Y.S.2d 140 (1946), affirmed 299 N.Y. 315 , 87 N.E.2d 275 (1949); Burlington County Nat. Bank of Medford v. Braddock, 24 N.J.Super. 462 , 94 A.2d 868 (1953).
Two years ago, in Wetzel v. Watson, 174 W.Va. 651 , 328 S.E.2d 526 (1985), we upheld the validity of a joint and mutual will that created a life estate and a remainder to the life estate’s issue. The majority distinguishes Wetzel because the beneficiaries in the disputed will were inconsistent with the beneficiaries in the original joint will, while in Mrs. Sanders’ holograph *221 ic will her son as sole beneficiary, was also named as a beneficiary in the original will. However, the narrowing of the beneficiary in the holographic will is inconsistent as it cuts off any inheritance of Mr. Sanders’ issue that were named in the joint will. Accordingly, because the result reached by the majority today violates the intention of both testators that was clearly stated in their joint will, I dissent.