                             STATE OF WEST VIRGINIA
                           SUPREME COURT OF APPEALS

Larry Henthorn,
Respondent Below, Petitioner                                                            FILED
                                                                                   February 23, 2018
vs.) No. 17-0035 (Tyler County 15-P-14H)                                             EDYTHE NASH GAISER, CLERK
                                                                                     SUPREME COURT OF APPEALS
                                                                                         OF WEST VIRGINIA 
Deborah Ahlers, Lisa Bonney,
William Moore, Leslie Strauss,
and Pamela Whiting,
Petitioners Below, Respondents


                               MEMORANDUM DECISION

       Petitioner Larry Henthorn, by counsel Gary L. Rymer, appeals the Circuit Court of Tyler
County’s December 12, 2016, order granting summary judgment in respondents’ favor.
Respondents Deborah Ahlers, Lisa Bonney, William Moore, Leslie Strauss, and Pamela Whiting,
by counsel Adam E. Barney, filed a response. Petitioner argues that the circuit court erred in
concluding that respondents possess a fee simple interest in certain oil and gas.

        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 affirming the circuit court’s order is appropriate under Rule 21
of the Rules of Appellate Procedure.

         On July 16, 1950, Arch T. Lewis executed a deed conveying to his wife, Ann Lewis, a
thirty-five-acre tract of land; his interest in the royalty oil and gas in and underlying his 208-acre
farm, “for and during her natural lifetime[;]” and certain personal property. With respect to the
oil and gas conveyance, the deed provided that

       [t]he said party of the first part doth grant, unto the said Ann Lewis, his wife, all
       his interest in the royalty oil and gas in and underlying his farm, situate in Lincoln
       District, Tyler County, West Virginia, containing about 208 acres of land, more or
       less, and that may be produced therefrom, for and during her natural lifetime.

        On September 15, 1950, Mr. Lewis executed a deed of correction. The deed of correction
stated that

       by deed dated July 16, 1950, the party of the first part intended and attempted to
       convey to the party of the second part in fee simple a certain tract of land


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       hereinafter described, and also his interest in the royalty in the oil and gas in and
       underlying his farm as described in the second description herein.

The first description described the thirty-five-acre tract and the personal property set forth in the
first and third conveyances of the original deed. The second description in the deed of correction
provided that

       [t]he said party of the first part doth grant, unto the said Ann Lewis, his wife, all
       of the rights, title and interest of the first party in royalties and oil and gas rights
       in and underlying his farm situated in Lincoln District, Tyler County, West
       Virginia, containing 208 acres of land, more or less, including all future royalties
       from such oil and gas rights to said farm, for and during her natural life.

(Emphasis added.) Next, the habendum clause stated, “TO HAVE AND TO HOLD the same,
unto the party of the second part, her heirs and assigns forever[.]” Finally, the deed of correction
concluded, “[a]nd the party of the first part hereby releases and relinquishes unto the party of the
second part, all his right, title and interest in and to said property[.]”

       Ms. Lewis died in 1961, bequeathing everything to her daughter, Lucille Clair. Ms. Clair
died on February 14, 1983, devising her estate to her grandchildren, respondents in this matter.

        By deeds dated December 17, 1990, petitioner purportedly purchased the subject oil and
gas from Mr. Lewis’s successors. Respondents, thereafter, initiated suit against him contending
that they owned the subject oil and gas and seeking a declaration of the parties’ rights. The
circuit court entered a briefing schedule, and the parties submitted briefs in support of their
respective positions. By order dated December 12, 2016, the circuit court concluded that Mr.
Lewis intended to and did convey a fee simple interest to Ms. Lewis in the oil and gas underlying
his farm, despite the “for and during her natural life” language contained within the deed of
correction. Ms. Lewis thereafter devised her estate, including the fee simple interest in the oil
and gas, to Ms. Clair. Ms. Clair subsequently devised her estate, including the fee simple interest
in the oil and gas, to respondents, leaving respondents as owners of the fee simple interest in the
subject oil and gas. It is from this order that petitioner appeals.

        We apply a de novo standard of review to a circuit court’s entry of summary judgment.
Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994). “[T]he interpretation of a
deed, which is not dependent upon extrinsic evidence, is a question of law for a court and not a
jury.” Faith United Methodist Church and Cemetery v. Morgan, 231 W.Va. 423, 428, 745 S.E.2d
461, 466 (2013). Accordingly, such interpretations are similarly reviewed de novo. Id.

        On appeal, petitioner argues that the circuit court erred in finding that Mr. Lewis
conveyed to Ms. Lewis a fee simple interest in the subject oil and gas. Petitioner contends that
Ms. Lewis was granted only a life estate in the oil and gas and urges this Court to apply the
following rule of construction: “If, in a deed, there be two clauses so totally repugnant to each
other, that they cannot stand together, effect will be given to the first, and the latter rejected.”
Syl. Pt. 4, Hall v. Hartley, 146 W.Va. 328, 119 S.E.2d 759 (1961) (internal quotations and
citation omitted). Petitioner argues that employing this rule of construction gives precedence to

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the “for and during her natural life” language limiting Ms. Lewis’s interest in the oil and gas to a
life estate over the next-appearing habendum clause.

        In reviewing the subject deed and deed of correction, we are mindful that, first and
foremost, “[t]he controlling factor in the interpretation of deeds, wills and contracts is the
intention of the parties; and to arrive at that intention the whole instrument must be carefully
scanned.” Morgan, 231 W.Va. at 443, 745 S.E.2d at 481 (citation omitted). In construing a deed,
“the function of a court is to ascertain the intent of the parties as expressed in the language used
by them.” Id. (citation omitted). But, “[w]here there is ambiguity in a deed, or where it admits of
two constructions, that one will be adopted which is most favorable to the grantee.” Syl., Paxton
v. Benedum-Trees Oil Co., 80 W.Va. 187, 94 S.E.472 (1917). Further, as recognized by
petitioner, “[i]f, in a deed, there be two clauses so totally repugnant to each other that they cannot
stand together, effect will be given to the first, and the latter rejected.” Id.; Hall, 146 W.Va. at
328, 119 S.E.2d at 760, Syl. Pt. 4.

        The deed of correction begins by expressing Mr. Lewis’s intention to convey a fee simple
interest: “by deed dated July 16, 1950, the party of the first part intended and attempted to
convey to the party of the second part in fee simple a certain tract of land . . . and also his interest
in the royalty in the oil and gas in and underlying his farm[.]” (Emphasis added.) This clear
expression of intent is the controlling factor in interpreting the deed of correction; however, to
the extent that the words “for and during her natural life” create ambiguity, we likewise conclude
that Mr. Lewis conveyed a fee simple interest in the subject oil and gas as that is the construction
most favorable to the grantee. Although petitioner argues that effect should be given to the
limiting language “for and during her natural life” because it appears before the habendum
clause, he ignores the fact that the first clause in the deed of correction sets forth Mr. Lewis’s
intention to convey a fee simple interest. Thus, employing the rule of construction urged by
petitioner nonetheless requires rejection of the “for and during her natural life” language.
Accordingly, we find that the deed of correction conveyed to Ms. Lewis a fee simple interest in
the subject oil and gas and that respondents herein are currently vested with that interest.

       For the foregoing reasons, we affirm the circuit court’s December 12, 2016, order
granting judgment in respondents’ favor.

                                                                                             Affirmed.

ISSUED: February 23, 2018

CONCURRED IN BY:

Chief Justice Margaret L. Workman
Justice Robin Jean Davis
Justice Menis E. Ketchum
Justice Allen H. Loughry II
Justice Elizabeth D. Walker
        
        

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