Harris v. Harris , 130 W. Va. 100 ( 1947 )

I am of the opinion that this case certified should be dismissed as improvidently docketed because the certification does not raise a definite question of law for the decision of this Court, but attempts to bring here the whole case ofGarnett Lee Harris v. Grace Harris and others for final decision on bill and answer considered together. This I believe is an improper certification. See 3 Am. Jur. 759, et seq. The Circuit Court of Mercer County sustained the demurrer to the bill of complaint and then, instead of complying with the provisions of Code, 58-5-2, which expressly require that upon certification "further proceedings in the case" shall be stayed "until such question shall have been decided and the decision thereof certified back," the court proceeded to consider the demurrer to the answer. The proceeding was not stayed upon sustaining the demurrer to the bill. Upon overruling the demurrer to the answer, in its opinion there being no good bill of complaint before the court, the circuit court entered an order certifying to this Court no specific questions of law, but only the sufficiency of both the bill and the answer upon the assigned points of demurrer. This Court has considered the certification as a case submitted for final decision upon bill and answer. To my mind this method of procedure is plainly not in compliance with our statute governing cases certified and the consent of counsel cannot enlarge the jurisdiction of this Court thereunder.

However, treating the matter as a proper case certified upon demurrer sustained as to the bill of complaint and overruled as to the answer, the holding of the circuit court in effect was that the second wife of decedent Harris was not vested with dower consummate in the real estate of which he died seised of the legal title. With this conclusion I agree, but am of the opinion that the questions certified, since they relate separately to both the bill of complaint and to the answer, should be accordingly treated by this Court in order that the general questions propounded by the circuit court may be more distinctly answered.

The bill of complaint avers that Harris died seised of an estate of inheritance in Lot 7, Section 127 of the City of Princeton and that the plaintiff was his wife at the time of his death. It also alleges a separation agreement dated and recorded before his marriage to the plaintiff, Garnett Lee Harris, that bound him to leave all his property to his former wife and their two children. The bill of complaint does not allege the time that he acquired title to the property in controversy. Under its allegations it could have been acquired before or after the separation agreement dated March 28, 1941, became effective. The bill of complaint, however, does allege that he died seised of an estate of inheritance in that property and therefore under the Court's opinion, but probably not under Syllabus 2, the title was acquired by Harris after the separation agreement went into effect. That contract plainly applied to the property owned at the time of its execution, but did it apply also to every piece of real estate that he might during the remainder of his lifetime acquire, regardless of its value? In other words, did that agreement automatically wipe out the estate of dower of his second wife in all after acquired property? I think not. It must be remembered that the contract was made in contemplation of divorce and obviously in lieu of alimony and a property settlement in that proceeding. Divorce, of course, wipes out dower, but with that we are not here concerned. `The question that arises on the sufficiency of the bill of complaint is: Did the separation agreement of March 28, 1941, include all property of which Harris might become the owner between that date and his death? If it did not include after acquired property of which Harris died seised, then the demurrer to the bill of complaint should not have been sustained because its allegations and prayer are broad enough to include property of that nature. If the separation agreement did cover after acquired property as well as property that Harris owned when it was executed, then the demurrer was properly sustained. The Court's opinion at one point states that it was the intention of the parties to the separation agreement to bind Harris to give to his former wife and his two children all of the property that he owned when that contract was signed. I agree with that conclusion and I believe that any doubtful construction of that contract should be resolved against the restriction of alienation, and the well nigh insuperable difficulties that would arise upon vesting infants with an equitable interest in all property thereafter held in the name of Harris, thereby likely requiring the intervention of a court of chancery in every business transaction affecting the property of Harris after March 28, 1941. I do not believe, however, that Syllabus 2 of the Court's opinion conforms with this viewpoint. In my opinion the term "all of his property" as used in the separation agreement should be construed to mean the property owned by him at the time of its execution, and not to speak as of the time of his death as wills do under Code,41-3-1. Under the allegations of the bill Harris died seised of an estate of inheritance in Lot 7 of Subsection 127 of the City of Princeton leaving the plaintiff as his widow, and since I believe the separation agreement affected only the property that he owned at that time, the bill of complaint not alleging when Lot 7 was conveyed to him, in my opinion the bill of complaint was a good bill and it was error to sustain the demurrer thereto.

The answer, I believe, is also good. It clearly alleges that Harris became the owner of Lot 7 in Subsection 127 in 1935 when he was married to his first wife; that he owned it when the separation agreement was entered into; and that he owned it at the time of his death. Under the averments of the answer plainly title was acquired by him before the separation agreement was executed and it was plainly subject to its terms because then owned by him. That property was charged with whatever burden was created by the separation agreement and the plaintiff by her marriage to Harris could acquire no right which was not subject to its terms, of which she had constructive' notice, it having been recorded in the county clerk's office of Mercer County before her marriage to Harris. The answer makes it plain that this case does not involve property acquired by Harris after the date of the separation agreement.

I would hold that the bill of complaint and the answer are both good and that the general questions certified should be accordingly answered. Otherwise the Circuit Court of Mercer County and this Court are in what I believe to be the rather anomalous position of holding that the bill of complaint is bad and yet that it was answered by a good pleading.

I question the correctness of the treatment of the separation agreement in the Court's opinion, particularly that part that takes the position that it has the effect of preventing Harris from owning an estate of inheritance in land, after acquired or otherwise. Perhaps it is rather finespun, but in my opinion it would be more sound to speak of it as being a charge or an encumbrance upon land owned by him at the time. Of course under our well known statute title to land can be transferred only by deed or will. That being so, I seriously doubt whether a person can change the nature of an estate in land by the execution of a paper of a lesser dignity. I have been unable to find a discussion in the books and since the question has no effect upon the result in this matter I wish only to comment upon my own uncertainty concerning it.