                                 STATE OF WEST VIRGINIA

                               SUPREME COURT OF APPEALS


James Junior Dancy,                                                               FILED
                                                                                 April 16, 2013
Petitioner Below, Petitioner                                                RORY L. PERRY II, CLERK

                                                                          SUPREME COURT OF APPEALS

vs.) No. 12-0107 (Nicholas County 10-P-13)                                    OF WEST VIRGINIA




Harold E. Stump II, Administrator
of the Estate of Harold E. Stump,
Respondent Below, Respondent

                                MEMORANDUM DECISION

       Petitioner James Dancy, by counsel William McCourt Jr., appeals the June 14, 2011
order of the Circuit Court of Nicholas County granting summary judgment in favor of
respondent. Respondent Harold E. Stump II, Administrator of the Estate of Harold E. Stump, by
counsel Cammie Chapman, filed a response, to which petitioner filed a reply.

       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.

        On April 16, 1997, Harold Stump properly executed a typed Last Will and Testament and
delivered a copy to petitioner. In February of 2007, a home fire completely destroyed Mr.
Stump’s original Last Will and Testament. Mr. Stump passed away on February 2, 2009, without
a spouse and survived by five children. Harold E. Stump II was appointed administrator of the
estate of Harold E. Stump on April 3, 2009. Petitioner filed an “Objection to the Invalidation of
the Last Will and Testament of Harold E. Stump and Motion that this Last Will and Testament
be Accepted” with the Nicholas County Commission requesting that a copy of the will be
accepted as the best evidence. The Nicholas County Commission refused to accept petitioner’s
copy of the will because it was not the original or a certified copy of the original. By order
entered on December 4, 2009, the Nicholas County Commission affirmed its prior decision.
        On April 5, 2010, petitioner filed a petition for appeal to the circuit court from the
Nicholas County Commission. The circuit court granted respondent’s cross motion for summary
judgment. In doing so, the circuit court held that “the general provisions . . . in West Virginia
Code § 58-3-1 et seq., are to be read in pari materia with the probate-specific statute, West
Virginia Code § 41-5-7.”1 The circuit court reissued the order granting respondent summary
judgment for purposes of this appeal.

       1
         The circuit court found additional grounds for granting summary judgment. In footnote
one, the circuit court found that petitioner failed to deliver the will to the county commission
                                                    1


        Petitioner argues that West Virginia Code § 58-3-1(d) and § 58-3-4 should control the
statute of limitations in this case because the statute states petitions “shall” be presented within
four months after judgment, not “may” be presented in three months. Petitioner argues that
conflicting code sections should be read together and applied together, if possible. Respondent
argues that when a party appeals a county commission’s probate order, the general provisions of
West Virginia Code § 58-3-1, et seq. must be read in pari materia with West Virginia Code § 41­
5-7 which specifically addresses the appeal process for probate cases. Respondent argues when
statutes are in conflict with each other and cannot be reconciled, the general rule is that the more
specific statute repeals the general statute.

        This Court reviews the circuit court’s entry of summary judgment under a de novo
standard of review. See Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).
“Summary judgment is appropriate if, from the totality of the evidence presented, the record
could not lead a rational trier of fact to find for the nonmoving party . . . .” Syl. Pt. 2, Williams v.
Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995). “Statutes which relate to the same
subject matter should be read and applied together so that the Legislature's intention can be
gathered from the whole of the enactments.” Syl. Pt. 3, Smith v. State Workmen’s Compensation
Commissioner, 159 W.Va. 108, 219 S.E.2d 361 (1975). “The general rule of statutory
construction requires that a specific statute be given precedence over a general statute relating to
the same subject matter where the two cannot be reconciled.” Syl. Pt. 1, UMWA by Trumka v.
Kingdon, 174 W.Va. 330, 325 S.E.2d 120 (1984). This Court has also said, “[W]here two distinct
statutes stand in pari materia, and sections thereof are in irreconcilable conflict, that section must
prevail which can properly be considered as the last expression of the law making power . . . .”
State ex rel. Pinson v. Varney, 142 W.Va. 105, 109, 96 S.E.2d 72, 74 (1956). In applying these
principles to the present case, petitioner should have filed his appeal pursuant to the more
recently amended and probate-specific statute. After considering the record, the circuit court’s
summary judgment order, and the arguments of counsel, this Court finds there was no error in
the circuit court’s entry of summary judgment.

       For the foregoing reasons, the circuit court’s order is hereby affirmed.

                                                                                             Affirmed.

ISSUED: April 16, 2013

CONCURRED IN BY:

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

within thirty days pursuant to West Virginia Code § 41-5-1. Additionally, once the administrator
was appointed, petitioner failed to appeal the decision pursuant to West Virginia Code § 41-5-11.
                                                       2
