                            STATE OF WEST VIRGINIA
                          SUPREME COURT OF APPEALS

Michael W. Murphy, as Executor to the                                              FILED
Estate of Willard F. Cottrill, Mark Cottrill,                                    October 18, 2013
                                                                              RORY L. PERRY II, CLERK
Alan Cottrill, and Venita Murphy,                                           SUPREME COURT OF APPEALS
Plaintiffs Below, Petitioners                                                   OF WEST VIRGINIA



vs) No. 12-1313 (Gilmer County 11-C-20)

Ruth Mitchell and Marlea Cottrill,
Defendants Below, Respondents


                              MEMORANDUM DECISION
       Petitioners Michael Murphy, who is the executor of the estate of Willard F. Cottrill, and
Mark Cottrill, Alan Cottrill, and Venita Murphy, three children of Willard F. Cottrill, by counsel
Staci N. Criswell, appeal the Order of the Circuit Court of Gilmer County granting summary
judgment in favor of Respondent Ruth Mitchell. Respondent appears by counsel Daniel R.
Grindo.

       This Court has considered the parties’ briefs and the record on appeal. The facts and legal
arguments are adequately presented, and the decisional process would not be significantly aided
by oral argument. Upon consideration of the standard of review, the briefs, and the record
presented, the Court finds no substantial question of law and no prejudicial error. For these
reasons, a memorandum decision is appropriate under Rule 21 of the Rules of Appellate
Procedure.

       Willard F. Cottrill died, testate, on October 20, 2010. His last will and testament
provided, in part:

       Article V I hereby give, devise and bequeath my real property of approximately
       42 acres to my four children in equal shares based upon the following provisions,
       and with the further declaration that if any of my children attempt to circumvent
       these provisions to the detriment of any of the others, then that person shall forfeit
       any and all claim to this property and said property shall be divided among the
       remaining children:

       1) I direct that if my children are unable to reach a unanimous decision on an
       equitable division, usage, divestiture, or any other matter regarding said real
       property, then a majority decision shall be appropriate.

       2) I direct that a residence on the said property be provided to my companion,
       Ruth Mitchell, for as long as she chooses to so reside, with this provision

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       becoming void should she at any time choose or need to live elsewhere. Said
       residency shall not preclude divestiture of the property by my heirs, and is not
       intended to establish a life tenancy.

       3) I direct that the parcel being just under two acres and recorded at Book 400
       page 447 in the Gilmer [C]ounty [C]ourthouse, be retained as a Cottrill family site
       to be used alternately by any of my descendants in a matter (sic) upon which they
       can agree. This site shall not be occupied for more than two consecutive weeks
       without the consent of all other owners thereof.

       4) For so long as they are owned by my heirs, I direct that income from the rental
       units on my property be used for taxes and upkeep of the remainder of the
       property, including the unit occupied by Ruth Mitchell and the parcel referenced
       in the above provision noted as paragraph 3 herein.

        On June 17, 2011, petitioners filed a Complaint to Quiet Title in the Circuit Court of
Gilmer County.1 They asserted that respondent, the companion named in the will, had no interest
in the decedent’s property, and requested that the court order respondent to “vacate the
premises.”2 Respondent filed an answer and counterclaim. The circuit court granted summary
judgment in favor of respondent, recognizing respondent’s right to reside on the subject property.
Petitioners filed a motion to alter or amend judgment, which the circuit court denied.

        Petitioners’ appeal of the order granting summary judgment followed. This Court has
long held that “[a] circuit court's entry of summary judgment is reviewed de novo.” Syl. Pt. 1,
Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). Pursuant to this standard, we review
petitioners’ single assignment of error: that the trial court’s grant of summary judgment in favor
of respondent is contrary to the terms of Mr. Cottrill’s last will and testament.

       We begin by observing that the circuit court determined, as petitioners asked it to do, that
respondent did not hold a life estate or tenancy in the subject property.

       A life estate is a possessory estate of freehold in the real estate in which a vested
       remainder exists, and while the life estate continues the right to possession of the
       realty is in the life tenant. Present enjoyment is the very essence of a life estate.
       The tenant of an estate for life in real estate has the right to the full enjoyment and
       use of the land and of its profits during the continuance of the life estate.

       1
        Mr. Cottrill’s will was admitted to probate on November 5, 2010. The record before us
contains no evidence of any challenge to the will, and there is no evidence that the petitioners did
not receive proper notice of the admission to probate. The circuit court noted at the pretrial
hearing that respondent had continued to live in the disputed residence after the death of Mr.
Cottrill—presumably through the six-month period during which a party might challenge a will
in probate—and still lived in that residence at the time of the pretrial hearing.
       2
         There is scant evidence that there were multiple residences on the property that was the
subject of Mr. Cottrill’s will.
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Kanawha Banking & Trust Co. v. Alderson, 129 W.Va. 510, 517, 40 S.E.2d 881, 885. (Citations
omitted.) Indeed, the testator had disavowed the creation of a life tenancy, and the circuit court
accordingly determined that only petitioners have a vested interest in the property. But the court
went on, as it was required to do, to ascertain the meaning of Mr. Cottrill’s direction that “a
residence . . . be provided to [respondent] for as long as she chooses to so reside . . . .”3

        The relief that petitioners sought beyond clear title—that is, ejectment—is wholly
inconsistent with the decedent’s directive that respondent be provided a residence. Inasmuch as
the circuit court was called upon to construe Mr. Cottrill’s will in this action to quiet title, it
appropriately followed the tenet established by this Court: “The cardinal principle in constructing
a will is to ascertain the intent of the testator as expressed in the words of the will and codicils,
giving consideration to all the surrounding circumstances.” Syl. Pt. 1, Claymore v. Wallace, 146
W.Va. 379, 120 S.E.2d 241 (1961). We find that the will is in harmony with the circuit court’s
conclusion that “the interests in this property have vested with the heirs, and said heirs may sell
the property but must do so contingent upon [respondent’s] right to reside in the residence she
shared with Mr. Willard F. Cottrill prior to his death.”4


       For the foregoing reasons, we affirm.

                                                                                          Affirmed.




       3
          Such an arrangement is not unprecedented. See Holleran v. Cole, 200 W.Va. 49, 53, 488
S.E.2d 49, 53 (1997) (Pursuant to real estate sales agreement appellee was permitted to “reside in
. . . apartment for the remainder of her ‘natural life’ or until she ‘should vacate’ the premises.”)
       4
        Noting the clarity of Mr. Cottrill’s will, the circuit court declined to consider parol
evidence relevant to this issue, and petitioners have not asserted that it was error for the court to
do so. We note that petitioners briefly argue that respondent may be entitled to a residence on the
subject property, but not the particular residence that she shared with the decedent. The record
before us lacks meaningful information about the nature of other available residences on the
subject property. We further note that the circuit court briefly questioned petitioners’ counsel
about this argument at the pretrial hearing, and counsel conceded that, if considered, the
circumstances of respondent’s living arrangements could support the circuit court’s construction
of the will:

       The court:      Well, isn’t it reasonable . . . under the facts and circumstances to
                       conclude it would be the house that she lived in and that she is still
                       living in?

       [Counsel]:      Probably, Your Honor, but I believe that could have been drafted
                       into the provisional will.
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ISSUED: October 18, 2013

CONCURRED IN BY:

Justice Robin Jean Davis
Justice Margaret L. Workman
Justice Menis E. Ketchum
Justice Allen H. Loughry II

DISSENTING:

Chief Justice Brent D. Benjamin




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