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
January 9, 2019
Syllabus by the Court
"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).
"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 tribunals order is clearly
erroneous as a matter of law; (4) whether the lower
tribunals order is an oft repeated error or manifests
persistent disregard for either procedural or substantive
law; and (5) whether the lower tribunals 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).
"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).
"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).
"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).
R. Collins, Esq., Nelson M. Michael, Esq., Tyler S.
Rohrbaugh, Esq., Nelson M. Michael, L.C., Keyser, West
Virginia, Counsel for Petitioner
Rozas, III, Esq., Rozas Law Office, LLC, Cumberland,
Maryland, Counsel for the Respondents Eston Presnell, III,
and Larry Wolfe
E. Sherman, Jr., Esq., Sherman Law Firm, Romney, West
Virginia, Counsel for Respondent Judith E. Wolfe
E. Smith, II, Esq., Law Office of James E. Smith, II,
Esquire, Keyser, West Virginia, Counsel for Respondent Eston
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 and
37-4-3. Co-executors of the estate, two of the
Testators 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 ...