Donna K. Jackson, Defendant Below, Petitioner
Tracie Stone Claypool and Joshua K. Stone, Plaintiffs Below, Respondents
Donna K. Jackson, by counsel John D. Wooton and Colleen C.
McCulloch, appeals the Circuit Court of Raleigh County's
July 13, 2016, "Amended Order Interpreting the
Holographic Last Will and Testament of Ada Margaret Stone,
Deceased, " wherein the circuit court awarded a one-half
share of the Estate of Ada Margaret Stone ("the
decedent") to respondents, the decedent's
grandchildren. Respondents Tracie Stone Claypool and Joshua
K. Stone, by counsel E. Kent Hellems and Benny G. Jones,
filed a response in support of the circuit court's order.
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.
decedent died testate on or about August 18, 2004. She had
executed a holographic will dated December 5, 1994, which was
admitted to probate on or about September 2, 2004, and
recorded in the Office of the Clerk of the County Commission
of Raleigh County. Petitioner, the decedent's daughter,
qualified as the executrix of the decedent's estate on or
about September 2, 2004. The holographic will included the
I bequeth [sic] to my daughter, Donna Kay Jackson and my son
Larry B. Stone, II, all my real and personal
property wherever located, all monies, all incomes present
and future, my IRA certificates and to share equal in all of
the above mentioned . . . and to anyone other than
son and daughter, I leave one dollar $1.00 that may claim any
rights to my possessions, etc. (Emphasis supplied by
are the children of Larry B. Stone II ("Mr. Stone")
who died intestate on or about September 3, 1996, prior to
the decedent's death but after the execution of her
holographic will. At the time of his death, Mr. Stone was not
married. The entirety of the holographic will was a
hand-written, single page document with approximately a
quarter page of text.
time of her death, the decedent owned a building construction
company that developed numerous pieces of property. She also
owned twenty-one parcels of property in Raleigh, Summers, and
Mercer Counties. Further, she was the incorporator and
vice-president of a business with petitioner, Window
filed a complaint seeking declaratory and other relief on
February 25, 2014. On July 13, 2016, the circuit court
entered its "Amended Order Interpreting the Holographic
Last Will and Testament of Ada Margaret Stone,
Deceased." In that order, the circuit court stated that
respondents alleged that because their father, Mr. Stone,
died before the decedent, respondents are entitled to receive
that portion of the bequest made by the decedent to Mr. Stone
pursuant to West Virginia Code § 41-3-3, the anti-lapse
statute. However, petitioner believes that under both the
provisions of the will and West Virginia Code § 41-3-4,
the bequest to Mr. Stone fails because the decedent provided
in her will for "a different disposition" of her
assets. Petitioner argued below that respondents should
receive the sum of $1 each and the remaining portion of the
bequest passes under the will to the other residuary legatee,
petitioner. The circuit court concluded that § 41-3-3 is
applicable and controlling of the disposition of the property
under the decedent's last will and testament. Therefore,
it found that respondents are entitled to the one-half share
of the decedent's estate bequeathed to their father, Mr.
Stone by that will. Petitioner appeals from that order.
We review this matter de novo, pursuant to our
typical standard of review for declaratory and summary
judgment actions as enunciated in syllabus point three of
Cox v. Amick, 195 W.Va. 608, 466 S.E.2d 459 (1995),
as follows: "A circuit court's entry of a
declaratory judgment is reviewed de novo." We
explained in Cox that "because the purpose of a
declaratory judgment action is to resolve legal questions, a
circuit court's ultimate resolution in a declaratory
judgment action is reviewed de novo . . . ."
Id. at 612, 466 S.E.2d at 463. In Poole v.
Berkeley County Planning Commission, 200 W.Va. 74, 488
S.E.2d 349 (1997), this Court acknowledged that "both
the entry of a summary judgment and the entry of a
declaratory judgment are reviewed by this Court de
novo." Id. at 77, 488 S.E.2d at 352.
Kubiczky v. Wesbanco Bank Wheeling, 208 W.Va. 456,
459, 541 S.E.2d 334, 337 (2000).
sets forth two assignments of error. First, she contends that
the circuit court erred in not allowing "any witnesses
to testify" despite the fact that witnesses were present
and prepared to testify. Petitioner argues that Forrest
Bowman, Esq., was prepared to testify about the facts and his
"factual opinion" on the legal issue before the
circuit court. She points to the circuit court's
statement during a prior hearing to bring witnesses to
testify. However, when the final hearing convened, the
circuit court granted respondents' motion to prohibit Mr.
Bowman's testimony. She argues that Mr. Bowman was
qualified as an expert by his knowledge, skill, experience,
training, and education. She further states that Mr.
Bowman's expected testimony was both relevant and
outset, we note that while petitioner asserts that the
circuit court prohibited her from presenting "any
witnesses to testify, " her argument focuses only on the
prohibited testimony of Forrest Bowman. As we have previously
"[t]he admissibility of testimony by an expert witness
is a matter within the sound discretion of the trial court,
and the trial court's decision will not be reversed
unless it is clearly wrong." Syllabus Point 6,
Helmick v. Potomac Edison Company, 185 W.Va. 269,
406 S.E.2d 700 (1991), cert. denied, 502 U.S. 908,
112 S.Ct. 301, 116 L.Ed.2d 244 (1991).
Syl. Pt. 3, Green v. Charleston Area Medical Center,
Inc., 215 W.Va. 628, 600 S.E.2d ...