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Presnell v. Presnell

Supreme Court of Appeals of West Virginia

February 15, 2019

Jonathan E. PRESNELL, Sr., Petitioner
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

         Submitted: January 9, 2019

          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).

         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).

Page 26

          David R. Collins, Esq., Nelson M. Michael, Esq., Tyler S. Rohrbaugh, Esq., Nelson M. Michael, L.C., Keyser, West Virginia, Counsel for Petitioner

         Ramon Rozas, III, Esq., Rozas Law Office, LLC, Cumberland, Maryland, Counsel for the Respondents Eston Presnell, III, and Larry Wolfe

         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.


         WALKER, Chief Justice:

Page 27

          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 § § 44-8-1[1] 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.

          I. FACTUAL AND ...

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