Jonathan E. Presnell v. Eston J. Presnell, III ( 2019 )

IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA
January 2019 Term
_______________
FILED
No. 17-0857 February 15, 2019
released at 3:00 p.m.
_______________ EDYTHE NASH GAISER, CLERK
SUPREME COURT OF APPEALS
OF WEST VIRGINIA
JONATHAN E. PRESNELL, SR.,
Petitioner
v.
ESTON J. PRESNELL, III, and LARRY A. WOLFE, JR., individually and as co-
executors of the ESTATE OF ROSEZELLA M. PRESNELL, deceased, JUDITH E.
WOLFE, and ESTON J. PRESNELL, JR.,
Respondents
____________________________________________________________
WRIT GRANTED
____________________________________________________________
Submitted: January 9, 2019
Filed: February 15, 2019
David R. Collins, Esq. Ramon Rozas, III, Esq.
Nelson M. Michael, Esq. Rozas Law Office, LLC
Tyler S. Rohrbaugh, Esq. Cumberland, Maryland
Nelson M. Michael, L.C. Counsel for the Respondents
Keyser, West Virginia Eston Presnell, III, and Larry Wolfe
Counsel for Petitioner
Lawrence E. Sherman, Jr., Esq.
Sherman Law Firm
Romney, West Virginia
Counsel for Respondent Judith E. Wolfe
James E. Smith, II, Esq.
Law Office of James E. Smith, II, Esquire
Keyser, West Virginia
Counsel for Respondent Eston Presnell, Jr.
CHIEF JUSTICE WALKER delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. “A writ of prohibition will not issue to prevent a simple abuse of
discretion by a trial court. It will only issue where the trial court has no jurisdiction or
having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.”   Syllabus
Point 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425 (1977).
2. “In determining whether to entertain and issue the writ of prohibition
for cases not involving an absence of jurisdiction, but only where it is claimed that the
lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate means, such as direct appeal, to
obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous
as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or substantive law; and (5) whether the
lower tribunal’s order raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as a useful starting point for
determining whether a discretionary writ of prohibition should issue. Although all five
factors need not be satisfied, it is clear that the third factor, the existence of clear error as a
matter of law, should be given substantial weight.” Syllabus Point 4, State ex rel. Hoover
v. Berger, 199 W. Va. 12, 483 S.E.2d 12 (1996).
i
3. “By virtue of W. Va. Code, 37–4–3, a party desiring to compel
partition through sale is required to demonstrate that the property cannot be conveniently
partitioned in kind, that the interests of one or more of the parties will be promoted by the
sale, and that the interests of the other parties will not be prejudiced by the sale.” Syllabus
Point 3, Consolidated Gas Supply Corp. v. Riley, 161 W.Va. 782, 247 S.E.2d 712 (1978).
4. “The paramount principle in construing or giving effect to a will is
that the intention of the testator prevails, unless it is contrary to some positive rule of law
or principle of public policy.”  Syllabus Point 1, Farmers and Merchants Bank v. Farmers
and Merchants Bank, 158 W. Va. 1012, 216 S.E.2d 769 (1975).
5. “The general intent of a testator, clearly and definitely expressed in
his will, prevails over particular or special intent expressed in a part of it, if it is impossible
to give effect to both the general and the particular or special intent.”   Syllabus Point 2,
Hope Nat. Gas Co. v. Shriver, 75 W. Va. 401, 83 S.E. 1011 (1914).
ii
WALKER, Chief Justice:
Rosezella Presnell (Testator) passed away in 2014 and her will devised a
family farm and other property to her three children – Petitioner Jonathan Presnell and
Respondents Judith Wolfe and Eston Presnell, Jr. Petitioner sought to have the family farm
partitioned in kind and argues that it was a specific devise, the sale of which requires a
showing that the property is not amenable to partition in kind consistent with West Virginia
Code §§ 44-8-11 and 37-4-3.2 Co-executors of the estate, two of the Testator’s
grandchildren, sought a court order to sell the family farm. The circuit court ruled in favor
of the co-executors and found that because the Testator granted a general power of sale to
the co-executors and referenced the potential for sale of another property, the Testator
showed approval of the concept of the sale of the family farm, even though it had been
separately and specifically devised. We disagree and grant a writ of prohibition. The
implication of possible sale relating to a separate piece of real property, even when viewed
in combination with a general power of sale, is insufficient evidence of an intent to sell all
other real property such that it overcomes the steps and findings required by West Virginia
Code §§ 44-8-1 and 37-4-3 to sell a specific devise subject to a partition suit.
1
2014 Repl. Vol.
2
2011 Repl. Vol
1
I. FACTUAL AND PROCEDURAL BACKGROUND
Testator Rosezella M. Presnell passed away at the end of 2014. Her three
children, Petitioner Jonathan Presnell and Respondents Judith Wolfe and Eston Presnell,
Jr., survived her. Testator was also survived by at least two grandchildren: Respondent
Larry A. Wolfe, Jr., the son of Judith Wolfe, and Respondent Eston Presnell, III, the son
of Eston Presnell, Jr. These two grandchildren were designated in Testator’s will as the
co-executors of her estate. Testator granted her executors a general power of sale as
follows:
FIFTH: In administering my estate, my executors are
authorized and empowered . . . to sell or exchange any property
contained in my estate, whether real or personal, and in case of
sale, to sell at public auction or privately, for cash or credit, and
upon such terms and conditions as they may deem best.
Relating to the division of her property, Testator’s will provided the
following:
SEVENTH: I give, will, devise and bequeath my property as
follows:
A. The merchandise associated with and located in Press Little
Market and Snack Bar shall be given to my daughter, Judith
E. Wolfe.
B. My home, the commercial complex in which Press Little
Market and Press Snack Bar operates, Press Auto Mart and
an eight car garage shall be divided between my three
children to share equally outright and in fee simple. In the
event that any or all of this property shall be sold, then
before the proceeds are divided between my three children,
the sum of Twenty Five Thousand ($25,000.00) shall be
given to my daughter Judith E. Wolfe. The remaining funds
shall be divided equally between the three children.
2
C. The family farm located on Middle Ridge in Mineral
County, West Virginia consisting of approximately 306
acres shall be given to my three children to share equally
outright and in fee simple.
D. The residue and remainder of my property, real, personal
and mixed, tangible or intangible, wherever situate,
whether now owned or hereafter acquired of which I die
seized and possessed, I give to my three children to share
equally outright and in fee simple.
Petitioner sought partition in kind of his portion of the family farm as devised
in paragraph 7C of Testator’s will and requested that his one-third portion be the portion
of the family farm that adjoined his own property. Petitioner and co-executors reportedly
disagreed as to how to value Petitioner’s portion, thereby precluding partition. The co-
executors alleged that Petitioner never provided a survey and appraisal of the property and
that the estate was without sufficient liquidity to provide one. In May 2016, Petitioner filed
a complaint in the Circuit Court of Mineral County alleging breach of fiduciary duty,
tortious interference with an inheritance, and seeking partition of the real estate. In his
complaint, Petitioner alleged that the co-executors had failed to make appropriate
accounting of personal property and to properly manage and preserve the real estate.
Specifically, Petitioner presented that Judith Wolfe had continued to operate her
convenience store and gas station out of the commercial complex without making rental
payments, and that collection of rental payments was one such source of liquidity to
manage and settle the estate’s affairs.
3
Respondent Judith Wolfe filed a counterclaim, alleging that she had
advanced a significant amount of money to the Testator during her life, and had
subsequently made expenditures on behalf of the estate for which she sought
reimbursement. While the litigation was pending, the co-executors began negotiations to
sell portions of the family farm. Petitioner refused to sign his name to the contracts, and
the co-executors moved for a court order allowing the sale of the real property to the
prospective buyers. Petitioner responded by moving for appointment of court
commissioners to determine whether or not the property could be conveniently and
equitably partitioned in kind.
At the hearing on Respondent co-executors’ motion, the circuit court took no
evidence, but determined that the general power of sale bestowed upon the co-executors,
when viewed in combination with the Testator’s apparent acknowledgment in paragraph
7B that the property including the commercial complex might be sold, implied that Testator
approved of the concept that her executors might sell real property, even real property
specifically devised in her will. Extrapolating and applying that concept to paragraph 7C
in which Testator devised the family farm, the court granted co-executors’ motion to sell
the family farm. It is from this interlocutory order that Petitioner now seeks relief.
II. STANDARD OF REVIEW
Upon filing this appeal and petition, Petitioner acknowledges that the circuit
court’s grant of Respondents’ motion to sell property was an interlocutory ruling, but seeks
4
relief under the collateral order doctrine or a writ of prohibition to prohibit the sale. We
have recognized prohibition matters as an exception to the rule of finality, and so find it
more appropriate to review this matter as seeking a writ of prohibition.3 “A writ of
prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will
only issue where the trial court has no jurisdiction or having such jurisdiction exceeds its
legitimate powers. W. Va. Code 53-1-1.”4 Because Petitioner contends that the circuit
court exceeded its legitimate powers in granting co-executors the power to sell real estate,
the question of whether Petitioner is entitled to the relief sought is guided by this well-
established framework:
In determining whether to entertain and issue the writ of
prohibition for cases not involving an absence of jurisdiction,
but only where it is claimed that the lower tribunal exceeded
its legitimate powers, this Court will examine five factors: (1)
whether the party seeking the writ has no other adequate
means, such as direct appeal, to obtain the desired relief; (2)
whether the petitioner will be damaged or prejudiced in a way
that is not correctable on appeal; (3) whether the lower
tribunal’s order is clearly erroneous as a matter of law; (4)
whether the lower tribunal’s order is an oft repeated error or
manifests persistent disregard for either procedural or
substantive law; and (5) whether the lower tribunal’s order
raises new and important problems or issues of law of first
impression. These factors are general guidelines that serve as a
useful starting point for determining whether a discretionary
writ of prohibition should issue. Although all five factors need
not be satisfied, it is clear that the third factor, the existence of
3
Robinson v. Pack, 223 W. Va. 828, 832, 679 S.E.2d 660, 664 (2009) (citing Adkins
v. Capehart, 202 W. Va. 460, 463, 504 S.E.2d 923, 926 (1998) (recognizing prohibition
matters as exception to rule of finality)).
4
Syl. Pt. 2, State ex rel. Peacher v. Sencindiver, 160 W. Va. 314, 233 S.E.2d 425
(1977).
5
clear error as a matter of law, should be given substantial
weight.5
III. DISCUSSION
Petitioner argues that the circuit court, despite finding that certain devises
contained in paragraph 7 were specifically devised, nonetheless permitted sale of the family
farm property without first determining whether the property was amenable to partition in
kind consistent with the directives of West Virginia Code §§ 44-8-1 and 37-4-3. Petitioner
likewise takes issue with the circuit court’s apparent reliance on the co-executors having
“entered into contracts with willing buyers” when those contracts were signed by the other
parties after the institution of Petitioner’s partition suit, of which the prospective buyers
were aware, and had no legal validity unless and until Petitioner affixed his name to the
contracts. Respondents counter that the circuit court did not rely exclusively on the
existence of the contracts and that the circuit court appropriately gave effect to the
Testator’s overall intent that her co-executors should have authority to sell her real property
as they see fit.
West Virginia Code § 44-8-1 provides “[w]hen any will heretofore or
hereafter executed gives to the executor named therein the power to sell the testator’s real
estate, which has not been theretofore specifically devised therein, the executor may sell
any such real estate unless otherwise provided in said will.” Petitioner contends that
5
Syl. Pt. 4, State ex rel. Hoover v. Berger, 199 W. Va. 12, 483 S.E.2d (1996).
6
because the family farm was specifically devised in Decedent’s will, the co-executors’
general power of sale does not permit them to sell the property outright. Once Petitioner
sought partition in kind, if the co-executors sought to sell the property by partitioning
through sale he argues they were required to comply with the provisions of West Virginia
Code § 37-4-3. As we have previously held,
[b]y virtue of W. Va. Code, 37–4–3, a party desiring to compel
partition through sale is required to demonstrate that the
property cannot be conveniently partitioned in kind, that the
interests of one or more of the parties will be promoted by the
sale, and that the interests of the other parties will not be
prejudiced by the sale.[6]
But, as we have also held, “[t]he paramount principle in construing or giving effect to a
will is that the intention of the testator prevails, unless it is contrary to some positive rule
of law or principle of public policy.”7 And, “[t]he general intent of a testator, clearly and
definitely expressed in his will, prevails over particular or special intent expressed in a part
of it, if it is impossible to give effect to both the general and the particular or special
intent.”8
6
Syl. Pt. 3, Consol. Gas Supply Corp. v. Riley, 161 W.Va. 782, 247 S.E.2d 712
(1978).
7
Syl. Pt. 1, Farmers and Merchants Bank v. Farmers and Merchants Bank, 158 W.
Va. 1012, 216 S.E.2d 769 (1975).
8
Syl. Pt. 2, Hope Nat. Gas Co. v. Shriver, 75 W. Va. 401, 83 S.E. 1011 (1914).
7
So, in this matter we are faced with these two competing interests. On one
hand, it is plain that the Testator specifically devised the family farm to her three children,9
requiring strict application of West Virginia Code § 37-4-3 once Petitioner sought
partition.10 But, it is also plain that the co-executors were granted a general power of sale
and that the Testator contemplated that the property described in paragraph 7B, a different
specific devise, might be sold. The circuit court found that the latter evidenced a general
intent on behalf of the Testator to have all of her property sold so as to overcome any
specific devise and consequently prevented application of West Virginia Code §§ 44-8-1
and 37-4-3.
As discussed above, if the general and specific intent of a testator cannot be
reconciled, the general prevails over the specific if that general intent is “clearly and
definitely expressed.” The circuit court determined that there was “enough” language to
9
Respondents claim that West Virginia Code § 44-8-1 does not apply because the
circuit court never explicitly found that the family farm was specifically devised. We
disagree. First, the circuit court found that there were “some” specific devises in paragraph
7, obviously in an attempt to exclude the residuary clause in paragraph 7D from that
collective. Second, contrary to Respondents’ assertion that the circuit court in making that
finding was referring only to the merchandise described in paragraph 7A, the circuit court
did explicitly find that the real property described in paragraph 7B was specifically devised,
and there can be no rational argument made that the devise of the real property described
in paragraph 7B was a specific devise while the family farm was not.
10
As we have noted, “[b]ut for the statute authorizing it, a sale of real estate could
not be decreed in a suit for partition thereof.” Syl. Pt. 1, Croston v. Male, 56 W. Va. 205,
49 S.E.136 (1904). Thus, sale of real estate subject to a partition suit is in derogation of
the common law and requires application of West Virginia Code § 37-4-3.
8
“imply” that the testator “anticipated” sale of some or all of her real property. We disagree
that Testator’s implication or anticipation of the possible sale of a particular piece of
property, inferred by the circuit court from the specific devise in paragraph 7B, amounts to
a clearly and definitely expressed intent by the Testator to sell all of her real property so as
to overcome a specific devise. To that end, we also disagree that the Testator’s general
and specific intent are irreconcilable.
Here, the Testator specifically devised her home, commercial complex, and
an eight-car garage to her three children, and, in a separate paragraph, specifically devised
her family farm to her three children. Like many testators, Testator gave her co-executors
a general power of sale. There is a marked distinction between a naked power of sale and
property devised to be sold.11 That is, testators who clearly intend that their real property
be sold would not typically make superfluous specific devises, but rather would devise the
property in trust to the executor for sale or otherwise specifically instruct the executor to
sell the property and to distribute the proceeds. In this case, the Testator created confusion
in her will by granting the power of sale to her co-executors, while also specifically
devising real property and including a clause in one of those devises that suggested or
anticipated that particular property might be sold.
11
Unlike the second paragraph of West Virginia Code § 44-8-1 authorizing
discretionary power to sell property that has not been specifically devised, under the first
paragraph of West Virginia Code § 44-8-1, the executor has the authority and a mandatory
duty to sell real estate that has been devised for the purpose that it be sold.
9
Important for our purposes, however, there is no language whatsoever in
paragraph 7C suggesting that the family farm might be sold. To apply the general power
of sale to allow for the sale of the family farm, then, requires a Herculean leap in logic.12
It requires us to determine that the Testator’s inclusion of language contemplating a
possible sale of another piece of property could express so clear and definite an intent to
sell that such clause might be extrapolated to provide for the sale of separately and
specifically devised real property. Far shorter is the logical leap that the Testator simply
foresaw the possibility of a sale of that particular property rather than intended a sale,
because the characteristics of the property described in paragraph 7B are likely to render it
incompatible with partition in kind, and Decedent wanted to ensure that her daughter,
whose livelihood is grounded in the commercial complex devised therein, should receive
an additional sum out of the proceeds. Such a reading gives effect to both the general and
specific intent of the Testator with no stretch in reasoning.
Without having taken any evidence, conjecture as to the Decedent’s intent
through aid of only presumption and implication as to a different property falls short of the
clear and definite expression of intent necessary to overcome the specific devise made
12
The general power of sale alone does not provide the co-executors with the
authority to sell any property specifically devised. W. Va. Code § 44-8-1 (“When any will
heretofore or hereafter executed gives the executor named therein the power to sell the
testator’s real estate, which has not been specifically devised therein, the executor may sell
any such real estate unless otherwise provided in said will.”) (emphasis added).
10
here.13 To allow the sale of specifically devised property without compliance with West
Virginia Code § 37-4-3 is in violation of West Virginia Code § 44-8-1, and was clear error,
meeting the third Hoover factor. Further, we have stated that “[f]orcible conversion of
property into money is avoided wherever possible[,]”14 because the right to property is
sacred:
“[I]t would be at variance with fundamental and basic
principles to say the Legislature intended to authorize a sale,
instead of a division, for any light or trivial cause. So sacred is
the right of property that to take it from one man and give it to
another for private use is beyond the power of the state itself,
even upon payment of full compensation.”15
Likewise,
[p]artition by sale, when it is not voluntary by all parties,
can be a harsh result for the cotenant(s) who opposes the sale.
13
While the circuit court’s order does not appear to lend much credence to the
argument, we wish to disabuse Respondents of the notion that sale of the family farm was
necessary to provide liquidity to the estate and that co-executors had a duty on behalf of
the estate to sell it. We have long held that realty is afforded special protection of the law
over that of personalty – the personal estate of the decedent is the principal source for
satisfaction of debts; real estate may only be sold when the personal estate is insufficient
to do so. See W. Va. Code § 44-8-3 (2014 Repl. Vol.); Bank of Mill Creek v. Elk Horn
Coal Co., 136 W. Va. 36, 53–54, 65 S.E.2d 892, 901 (1951); George v. Brown, 84 W. Va.
359, 99 S.E. 509 (1919). Respondents have not shown that an accounting of the personal
estate has been completed and applied for liquidity, nor does it appear that they have
accounted for and applied for liquidity the merchandise gifted in paragraph 7A to
Respondent Judith Wolfe. Consequently any contention that the co-executors had a duty
on behalf of the estate to sell this real property without first having exhausted those sources
of personal property or taking any affirmative steps to subject the realty to debts of the
estate is unfounded.
14
Croston, 56 W. Va. at 210, 49 S.E. at 138.
15
Renner v. Bonner, 227 W. Va. 378, 386, 709 S.E.2d 733, 741 (2011) (quoting
Croston, 56 W. Va. at 210, 49 S.E. at 138).
11
This is because “‘[a] particular piece of real estate cannot be
replaced by any sum of money, however large; and one who
wants a particular estate for specific use, if deprived of his
rights, cannot be said to receive an exact equivalent or
complete indemnity by the payment of a sum of money.’”[16]
For that reason, we find that if Respondents were permitted to go forward with the sale of
Petitioner’s property under the proposed contracts and against his wishes, Petitioner would
be prejudiced in a way that would not be correctable on appeal, and so has also met the
second Hoover factor. Accordingly, we grant the writ of prohibition and preclude sale of
the property pending the circuit court’s review under West Virginia Code § 37-4-3. As we
have discussed, “‘[a] cotenant cannot have the land sold rather than partitioned, as a matter
of right, the right of sale being only an incident of, and subordinate to the right of
partition.’”17 And, we have held that
[b]y virtue of W. Va. Code 47-4-3, a party desiring to
compel partition through sale is required to demonstrate that
the property cannot be conveniently partitioned in kind, that
the interests of one of more of the parties will be promoted by
the sale, and that the interests of the other parties will not be
prejudiced by the sale.[18]
The circuit court is therefore instructed to apply West Virginia Code § 37-4-3 to determine
whether the family farm is amenable to partition in kind before permitting sale of the
property.
16
Ark Land Co. v. Harper, 215 W. Va. 331, 336, 599 S.E.2d 754, 759 (quoting
Wight v. Ingram-Day Lumber Co., 17 So. 2d 196, 198 (Miss. 1944)).
17
Consol. Gas Supply Corp., 161 W. Va. at 786, 247 S.E. at 714–15 (quoting Loudin
v. Cunningham, 82 W. Va. 453, 454, 96 S.E. 59, 60 (1918)).
18
Id. at syl. pt. 3.
12
IV. CONCLUSION
For these reasons, we grant Petitioner’s writ of prohibition.
Writ granted.
13