Tharp v. Tharp , 131 W. Va. 529 ( 1948 )

In my opinion the parts of the syllabus and opinion which hold that Eugene Tharp took a vested remainder under the will of his grandfather, W. L. Tharp, are erroneous and constitute an unsound statement of law. The procedural aspects of this litigation, involving the application of Uniform Declaratory Judgments Act, are correctly decided.

Did Eugene Tharp take a contingent or vested remainder in the estate of his grandfather? That is the controlling question. If the will of W. L. Tharp created a contingent remainder in Eugene Tharp, the latter had no property which was transmissible under the law of descent and distribution and the plaintiff would not be entitled to any part of W. L. Tharp's estate. On the contrary, if the will created a vested remainder in Eugene Tharp, as decided by the majority of this Court, the rights of the plaintiff as an heir and distributee of her deceased son are plain. I think it is clear that the will of W. L. Tharp did not operate to vest at his death any property in Eugene Tharp and that the vesting of the property under said will was, by the clearly expressed intention of the testator, postponed until the death or remarriage of Ellen G. Tharp.

The majority opinion is based on two propositions: (1) That a will takes effect on the death of the testator in the absence of a contrary intent clearly expressed in the will; and (2) That the law favors the early vesting of estates.

It was formerly held that a will took effect upon the death of the testator regardless of the testator's intent. But this Court, in the case of Schaeffer v. Schaeffer, 54 W. Va. 681,46 S.E. 150, vigorously criticized that rule and foreshadowed a subsequent holding by this Court wherein it was said: "Words of survivorship contained in a will will be construed according to their usual and common acceptation, unless a different meaning plainly appears to have been intended thereby; and will be referred to the event plainly intended to accomplish the purpose of the testator, whether that event be before, at the time of, or after the death of the testator." Dent v. Pickens,61 W. Va. 488, 58 S.E. 1029. To the same effect are: Neal v.Hamilton Co., 70 W. Va. 250, 73 S.E. 971; Prichard v. Prichard,83 W. Va. 652, 98 S.E. 877; Natl. Bank v. Kenney, 113 W. Va. 890,170 S.E. 177; Brookover v. Grimm, 118 W. Va. 227,190 S.E. 697; Trust Co. v. Stewart, 128 W. Va. 703,37 S.E.2d 563.

The diversities of facts and language involved in will cases render it difficult to establish and state general principles applicable to all cases. But no citation of authority is required for the proposition that the intention of the testator is controlling if, in carrying out that intention, no principle of law is violated. In the instant case we are only called upon to enforce the intention of W. L. Tharp, plainly stated in his last will and testament. Such intention is ascertainable from the entire will, is clearly stated therein, and, violating no principle of law, overrides the principle relative to the time the property vested and also that principle of law relative to the early vesting of estates.

W. L. Tharp intended his property to be used and enjoyed by his wife and son so long as his widow lived and remained unmarried, and, upon the happening of either event, the children of Earl M. Tharp then living and Earl M. Tharp should take vested remainders. A quotation of the pertinent part of the will discloses that intention, expressed in direct, simple and unambiguous language as follows: "* * * subject, however, to this, that at the decease or remarriage of said Ellen G. Tharp, the whole of said real estate and personal property shall pass to and become the absolute property of said Earl M. Tharp, and his children * * *." No other part of the will modifies, changes or in any way weakens the language of the will quoted above.

Notwithstanding this clear language the opinion of the Court transmutes the word "children" to the word "child", although such construction is softened by reasoning in the opinion that the child living at the death of the testator was a member of a class and whatever property vested in him on the death of his grandfather was subject to be divested upon the birth of other children of Earl M. Tharp. That a remainder was vested in one member of the class at the testator's death subject to being divested pro tanto upon the birth of other members of such class after the death of the testator, creates, to say the least, an unusual estate in remainder.

In this case, according to the Court's reasoning, a certain portion of W. L. Tharp's estate is vested, but the birth of other grandchildren subsequent to his death takes away from the sole child living at the time of his death. I think that such reasoning is fallacious in that respect and that the members of the class, to-wit, the children of Earl M. Tharp, are to be determined at the time of Ellen G. Tharp's death or remarriage. The Court's opinion certainly leaves much to be desired as to the question of how much of the estate was inherited by Eugene Tharp. So far as shown by this record Earl M. Tharp may have other children which, according to the Court's opinion, would reduce the amount taken by Eugene Tharp, thus leaving an undetermined and uncertain question in disposing of W. L. Tharp's property.

I do not think it is the function or right of a court to substitute their intention for that of the owner of the property who has the right to dispose of it as he sees fit subject to rules of law, thus establishing judge-made wills. In this case the testator clearly intended to provide for his widow, son and grandchildren and said so in no uncertain terms. Nevertheless, the majority of the Court reaches such conclusion that a substantial part of his estate goes to the son's wife, who is now estranged from her husband. That estrangement, of course, did not exist at the time of the testator's death. I think the intention of the testator is thwarted and that the rigid application of the rules that a will takes effect at the death of the testator and that an estate should be vested as early as possible, violates the modern rule allowing a testator to dispose of his property to whom, and at such time as he desires. It is my opinion that Eugene Tharp took only a contingent remainder in the estate of his grandfather and such estate, not having vested during the life of Eugene Tharp, was not transmissible under the laws of descent and distribution.

For the foregoing reasons, I respectfully dissent from the Court's opinion and would affirm the judgment of the trial court.