         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.                        Roman 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
