Miller v. Todd
Annotate this CaseJanuary 1993 Term
___________
No. 22042
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PEARL TODD MILLER,
Plaintiff Below, Appellant
v.
GEORGE EDWARD TODD, AS EXECUTOR
OF THE ESTATE OF BERTHA TODD,
AND GEORGE EDWARD TODD, INDIVIDUALLY,
Defendant Below, Appellee
___________________________________________________
Appeal from the Circuit Court of Raleigh County
Honorable Robert A. Burnside, Jr., Judge
Civil Action No. 91-C-2028-B
AFFIRMED
___________________________________________________
Submitted: May 4, 1994
Filed: July 11, 1994
William L. Mundy
Renatha S. Garner
Mundy & Adkins
Huntington, West Virginia
R. R. Fredeking, II
Fredeking & Fredeking
Huntington, West Virginia
Attorneys for the Appellant
Ned H. Ragland, Jr.
Beckley, West Virginia
W. A. Thornhill, III
Beckley, West Virginia
Attorneys for the Appellee
This Opinion was delivered PER CURIAM.
SYLLABUS BY THE COURT
1. "A motion for summary judgment should be granted only
when it is clear that there is no genuine issue of fact to be tried
and inquiry concerning the facts is not desirable to clarify the
application of the law." Syl. pt. 3, Aetna Casualty and Surety Co.
v. Federal Ins. Co. of N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963).
2. "'[I]t is not the reasons assigned upon which the
[lower] court decided a question that is to be reviewed, but the
action of the court itself; and the question always in the
appellate court is, whether the judgment to be reviewed is
correct.' Syl. pt. 5, State ex rel. Dandy v. Thompson, 148 W. Va.
263, 134 S.E.2d 730 (1964), in part." Syl. pt. 2, McAllister v.
McAllister, 166 W. Va. 569, 276 S.E.2d 321 (1981).
Per Curiam:
This is an appeal from an order entered in the Circuit
Court of Raleigh County granting the appellee's motion for summary
judgment concerning the validity of a will executed by Mrs. Bertha
Todd in 1986 and, further, granting the appellee's motion to
dismiss the entire action. This Court has before it the petition
for appeal, all matters of record and the briefs and argument of
counsel. For the reasons stated below, the judgment of the circuit
court is affirmed.
I
Pearl Todd Miller (hereinafter "appellant") is the
daughter of Bertha Todd, who died on June 1, 1990, leaving a multi-
million dollar estate. Prior to her death, Mrs. Todd had executed
various documents, each designated as her Last Will and Testament
and each containing language revoking any and all prior wills and
codicils.See footnote 1 The will executed most recently before Mrs. Todd's
death, a document dated August 22, 1986, was admitted to probate on June 24, 1990. The appellant's brother, George Edward Todd
(hereinafter "appellee"), was appointed the executor of Mrs. Todd's
estate by the County Commission of Raleigh County.See footnote 2 In this will,
Mrs. Todd left to the appellant, her daughter, the sum of $25,000.
The remainder of her estate, both real and personal property, was
left to her son, the appellee.See footnote 3
In an affidavit dated October 18, 1991, Mrs. Todd's
attorney, Ned H. Ragland, Jr., stated that he prepared the August
22, 1986 will when it was believed that a will previously executed
by Mrs. Todd, on July 30, 1984, was destroyed when his law offices
burned. The 1986 will was apparently executed to simply reflect
the "lost" 1984 will.See footnote 4 However, according to Mr. Ragland's
affidavit, he ultimately discovered, after the 1986 will had
already been executed, that the 1984 will had, in fact, not been
destroyed.See footnote 5
Mr. Ragland's affidavit further stated that two other
wills had previously been executed by Mrs. Todd. These wills,
dated January 5, 1972 and June 9, 1977 and attached to the appellee's motion for summary judgment as Exhibits A and B,
respectively, were prepared by Mrs. Todd's former attorney, Herbert
Underwood. The 1972 willSee footnote 6 made no provision for the appellant, but
did not expressly exclude her, and purported to place most of Mrs.
Todd's estate in the hands of a trustee, with certain real and
personal property passing directly to the appellee.See footnote 7
Like the 1984 and 1986 wills, the 1977 will left to the
appellant the sum of $25,000.See footnote 8 That will left to the appellee all household furnishings, personal clothing, farm equipment and a life
estate in certain real property. The remainder of the estate was
to be held in trust for the ultimate benefit of the West Virginia
Baptist Convention.
As indicated above, the August 22, 1986 will, which left
the appellant $25,000 and the remainder of the estate to the
appellee, was admitted to probate on June 24, 1990. On July 24,
1991, the appellant filed a three-count complaint in the Circuit
Court of Raleigh County, alleging, in count one, that the appellee
"coerced, tricked, induced, and/or unduly influenced" Mrs. Todd,See footnote 9
their mother, into executing the 1986 will and that, at the time
the 1986 will was executed, Mrs. Todd was of unsound mindSee footnote 10 and,
therefore, lacked testamentary capacity.See footnote 11 In count two, the appellant alleged that the appellee, who had previously been
granted Mrs. Todd's power of attorney, breached his fiduciary duty
to her by purchasing certain real estate with funds belonging to
Mrs. Todd. This real estate was held by the appellee and Mrs. Todd
as joint tenants with the right of survivorship thus passing
directly to the appellee upon Mrs. Todd's death without becoming
part of Mrs. Todd's estate. Finally, the appellant alleged, in
count three, that, prior to Mrs. Todd's death, Mrs. Todd held or
owned certain assetsSee footnote 12 jointly with the appellee and that the
appellee acquired an interest in these assets through the exercise
of his power of attorney or through coercion, trickery and the exertion of undue influence upon Mrs. Todd, all in breach of his
fiduciary duty to her.See footnote 13
The appellant subsequently asked that the circuit court,
inter alia, set aside and declare null and void the 1986 will and
that Mrs. Todd be declared to have died intestate, leaving the
appellant and the appellee as her only heirs at law and the only
distributees of her estate.See footnote 14
A hearing on the appellee's motion for summary judgment
was held in the Circuit Court of Raleigh County, on November 20,
1991. Upon consideration of the four wills executed by Mrs. Todd
as well as Mr. Ragland's affidavit and the briefs and argument of
counsel, the trial judge granted the appellee's motion for summary
judgment, without prejudice, on count one of the appellant's
complaint, granting the appellant the right to amend her complaint.
The trial judge further concluded that, by granting summary
judgment on count one of appellant's complaint, counts two and
three were, therefore, rendered moot. Thus, counts two and three were dismissed without prejudice to the right of the appellant to
amend.See footnote 15
II
The facts of this case are unique. The wills executed by
Mrs. Todd in 1986, 1984 and 1977 each bequeath to the appellant the
sum of $25,000, and nothing more. It is the appellant's contention
that Mrs. Todd executed both the 1986 and 1984 wills while of
unsound mind and as a result of coercion and trickery on the part
of her son, the appellee. However, at the November 21, 1991
hearing, the appellant specifically stated that Mrs. Todd did have
the testamentary capacity to execute the 1977 will and, further,
was not unduly influenced into executing it.
As this Court has previously stated, "[a] motion for
summary judgment should be granted only when it is clear that there
is no genuine issue of fact to be tried and inquiry concerning the
facts is not desirable to clarify the application of the law."
Syl. pt. 3, Aetna Casualty and Surety Co. v. Federal Ins. Co. of
N.Y., 148 W. Va. 160, 133 S.E.2d 770 (1963). Furthermore, any doubt as to the existence of a genuine issue of fact must be
resolved against the moving party, who must affirmatively show that
the nonmoving party cannot prevail under any circumstances. Id. at
171, 133 S.E.2d at 777.
The trial court determined that even if the 1986 will,
which bequeathed to the appellant $25,000, were deemed null and
void, due to Mrs. Todd's lack of testamentary capacity and/or the
appellee's undue influence over her, then the 1984 will would be
offered for probate, still leaving the appellant $25,000. Were the
trial court to declare the 1984 will null and void as well, the
appellant would receive $25,000 under the 1977 will, the validity
of which the appellant does not question. Under either the 1986,
1984 or 1977 will, the appellant would receive no more than $25,000
from her mother's estate. We must conclude, therefore, that the
trial court did not err in granting the appellee's motion for
summary judgment.
Furthermore, the existence of the revocation clause in
the 1986 will cannot serve to revoke a prior will if the 1986 will
is deemed invalid as a result of Mrs. Todd's lack of testamentary
capacity. If Mrs. Todd lacked the requisite testamentary capacity
to execute the 1986 will, then it follows that she also lacked the
"intent to revoke" as required by W. Va. Code, 41-1-7 [1923].See footnote 16 The
1986 will cannot be relied upon as a revocation of prior wills because if that will is invalid, then so is the revocation language
contained therein. Syl. pt. 2, Dower v. Seeds, 28 W. Va. 113
(1886).See footnote 17
III
In granting the appellee's motion for summary judgment,
the trial court apparently applied the doctrine of dependent relevant revocation.See footnote 18 As indicated above, that doctrine is not
necessary to the resolution of this case.
This Court stated in syllabus point 2 of McAllister v.
McAllister, 166 W. Va. 569, 276 S.E.2d 321 (1981):
'[I]t is not the reasons assigned upon
which the [lower] court decided a question
that is to be reviewed, but the action of the
court itself; and the question always in the
appellate court is, whether the judgment to be
reviewed is correct.' Syl. pt. 5, State ex
rel. Dandy v. Thompson, 148 W. Va. 263, 134 S.E.2d 730 (1964), in part.
Regardless of the reasons of the trial judge in granting summary
judgment, we believe his judgment is correct.See footnote 19
For the reasons stated above, the judgment of the Circuit
Court of Raleigh County is affirmed.
Footnote: 1W. Va. Code, 41-1-7 [1923] provides:
No will or codicil, or any part thereof,
shall be revoked, unless under the preceding
section [§ 41-1-6], or by a subsequent will
or codicil, or by some writing declaring an
intention to revoke the same, and executed in
the manner in which a will is required to be
executed, or by the testator, or some person
in his presence and by his direction,
cutting, tearing, burning, obliterating,
canceling or destroying the same, or the
signature thereto, with the intent to revoke.
Footnote: 2Paragraph four of Mrs. Todd's 1986 will states:
I designate and appoint my son, GEORGE
EDWARD TODD, of Beaver, West Virginia, as
Executor of this my Last Will and Testament,
and vest him with full power and authority to
do any and all things necessary and
convenient for the complete administration
and settlement of my estate.
Footnote: 3Mrs. Todd's will of August 22, 1986 provides, in
relevant part:
SECOND: I give and bequeath to my
daughter, PEARL TODD MILLER, the sum of
Twenty-Five Thousand Dollars ($25,000.00)
provided she shall survive me. If my said
daughter, PEARL TODD MILLER, shall not
survive me, I direct that said sum of Twenty-
Five Thousand Dollars ($25,000.00) be
distributed as part of my residuary estate as
set forth in Article THIRD hereof.
THIRD: I give, devise and bequeath to
my son, GEORGE EDWARD TODD, all of the rest,
residue and remainder of my property and
estate, real, personal and mixed, of
whatsoever nature and character and
wheresoever situate of which I may die seized
or possessed or in or to which I may have any
right, title, claim, interest or reversion.
Footnote: 4The July 30, 1984 will provided, in relevant part:
SECOND: I give and bequeath to my
daughter, PEARL TODD MILLER, the sum of
Twenty-Five Thousand Dollars ($25,000.00)
provided she shall survive me. If my said
daughter, PEARL TODD MILLER, shall not
survive me, I direct that said sum of Twenty-
Five Thousand Dollars ($25,000.00) be
distributed as part of my residuary estate as
set forth in Article THIRD hereof.
THIRD: I give, devise and bequeath to
my son, GEORGE EDWARD TODD, all of the rest,
residue and remainder of my property and
estate, real, personal and mixed, of
whatsoever nature and character and
wheresoever situate of which I may die seized
or possessed or in or to which I may have any
right, title, claim, interest or reversion.
Footnote: 5A signed copy of Mrs. Todd's 1984 will was attached to
the appellee's motion for summary judgment as Exhibit C.
Footnote: 6The copy of Mrs. Todd's 1972 will attached to the
appellee's motion for summary judgment is unsigned.
Footnote: 7The 1972 will provided, in part:
II.
I give and bequeath all of my personal
property, exclusive of household furnishings,
personal clothing and farm equipment, to
Herbert G. Underwood of Clarksburg, West
Virginia, as Trustee, to be held, managed and
administered by him in trust upon the terms
and conditions hereinafter set forth.
III.
I give and devise all of my real estate
with the exception of that situate in Raleigh
County, West Virginia, which I may own at the
time of my death to Herbert G. Underwood, as
Trustee, to be held, managed and administered
by him in trust upon the terms and conditions
hereinafter set forth.
IV.
All the rest, residue and remainder of
my estate, real, personal and mixed, I give,
devise and bequeath to my son, George Edward
Todd, for his lifetime only, and upon his
death the remainder shall pass to Herbert G.
Underwood, as Trustee, in accordance with the
terms and conditions of the trust hereinafter
set forth.
V.
My Trustee shall, at least quarterly
each year commencing with the time of my
death, pay from the income of the trust and,
if necessary, from the principal thereof,
. . . in equal parts to my son, George Edward
Todd, and my present pastor, Reverend Oliver
Tedder, so long as each shall live. If my
son, George Edward Todd, should predecease me
or should survive me and predecease my
present pastor, Reverend Oliver Tedder, then
from and after my death, or from and after
the death of my son, George Edward Todd,
whichever event shall happen last, said
Reverend Oliver Tedder shall receive all the
quarterly payments hereunder each year so
long as he shall live. If my present pastor,
Reverend Oliver Tedder, should predecease me,
or survive me and predecease my son, George
Edward Todd, then from and after my death, or
from and after the death of Reverend Oliver
Tedder, whichever event shall happen last,
George Edward Todd shall receive all the
quarterly payments hereunder each year so
long as he shall live.
. . . .
VI.
Upon the death of the survivor of my
son, George Edward Todd, and my present
pastor, Reverend Oliver Tedder, said trust
shall terminate, and all the property in the
trust fund, including principal and accrued
income, shall be paid over and distributed to
the West Virginia Baptist Convention[.]
Footnote: 8Paragraph Two of Mrs. Todd's 1977 will stated:
I give and bequeath to my daughter,
Pearl Todd Miller, the sum of Twenty-Five
Thousand Dollars ($25,000.00), provided she
shall survive me. If my daughter shall have
predeceased me, I direct that said sum of
Twenty-Five Thousand Dollars ($25,000.00) be
added to, held, administered and distributed
as part of my residuary estate.
Footnote: 9Mrs. Todd had been bedridden since 1980 and apparently
suffered from delusions and hallucinations.
Footnote: 10Mr. Ragland states in his affidavit that Mrs. Todd
was "fully competent" at the time she executed both the 1984 and
1986 wills.
Footnote: 11W. Va. Code, 41-1-1 [1923] provides:
Every person not prohibited by the
following section [§ 41-1-2] may, by will,
dispose of any estate to which he shall be
entitled at his death, and which, if not so
disposed of, would devolve upon his heirs,
personal representative, or next of kin. The
power hereby given shall extend to any
estate, right, or interest, to which the
testator may be entitled at his death,
notwithstanding he may become so entitled
after the execution of the will.
W. Va. Code, 41-1-2 [1957] provides: "No person of
unsound mind, or under the age of eighteen years, shall be
capable of making a will."
Footnote: 12These assets are identified as bank accounts, money
market accounts and certificates of deposits at various banks
located in Raleigh County, West Virginia and the MST West
Virginia Bond Fund.
Footnote: 13In discovery depositions of the appellee and his
wife, Wilda Todd, it was revealed that a number of checks for
large sums of money were written and signed by the appellee on a
joint checking account held by him and his mother, from 1983
until her death in 1990.
Footnote: 14The appellant further asked that all real and
personal property which passed to the appellee under the terms of
Mrs. Todd's 1986 will and which was owned jointly by Mrs. Todd
and the appellee be turned over to a receiver for a proper and
legal distribution thereof.
Footnote: 15On February 3, 1992, the appellant filed an amended
complaint in which she alleged, in addition to the allegations
contained in the original complaint, that Mrs. Todd was coerced,
tricked, induced and/or influenced by the appellee into making
the July 30, 1984 will. On May 29, 1992, the appellant filed a
motion to file a second amended complaint to bring in as a party
plaintiff the West Virginia Baptist Convention and several named
trustees. By order of June 10, 1993, the trial court denied the
appellant's motion for leave to file a second amended complaint
and dismissed, with prejudice, the appellant's amended complaint
of February 3, 1992.
Footnote: 16See n. 1, supra. See generally 95 C.J.S. Wills § 264
(1957).
Footnote: 17As the Supreme Court of Appeals of Virginia so
logically reasoned: "[A] revoking clause in a will is a part and
parcel of the will itself, without independent and immediate life
or power, and that it survives or perishes with the will."
Timberlake v. State-Planters Bank of Commerce & Trusts, 115 S.E.2d 39, 44 (Va. 1960), citing Barksdale v. Barksdale, 12 Leigh
535, 39 Va. 535 (1842).
Footnote: 18The doctrine of dependent relevant revocation,
recognized in syllabus point 3 of Nelson v. Ratliffe, 137 W. Va.
27, 69 S.E.2d 217 (1952) provides:
If a testator obliterates, deletes, or
cancels a will, having a present intent to
make a new will as a substitute for the old,
and the new will is not made, it is presumed
that the testator preferred the old will to
an intestacy and the first will will be given
effect.
In the body of Nelson, however, the Court, quoting authorities
from other jurisdictions and texts, adds that if a new will is
made and the new will "'fails of effect for some reason, it will
be presumed that the testator preferred the old will to an
intestacy, and this testament will be given effect.'" Id. at 35-
36, 69 S.E.2d at 222 (citations omitted).
We disagree with the appellant's contention that the doctrine of dependent relevant revocation is not recognized in this jurisdiction. While in the case of In re Estate of Siler, 155 W. Va. 743, 754-55, 187 S.E.2d 606, 615 (1972), Justice Carrigan expressed his personal disdain for that doctrine, the majority of this Court did not find it to be invalid. Footnote: 19The appellant also argues that the trial court erred in determining that the appellant does not have standing to contest her mother's will(s). We find nothing in the record indicating that the trial court made such a determination. We, therefore, will not address that assignment of error. Furthermore, the resolution of this case would not turn on that issue.
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