Hedrick v. Hedrick , 125 W. Va. 702 ( 1943 )

We must not lose sight of the fact that in dealing with the words "it is my request" we are not considering language usually made use of in creating trusts and that in this instance we are dealing with a will which contains only one sentence prepared by a deputy sheriff at the testator's request upon the day of his death. In that one sentence there are two latent ambiguities both of which are in the clause thought by the majority to create a trust, the one as to the testator's meaning in referring to the heirs of a living person, and the other by his referring to the "home place", there being two dwellings to either of which that description might relate. These ambiguities make it impossible to determine from the face of the will either the subject or the object of the provision in question. Extrinsic evidence is required, therefore, to establish a trust. Furthermore, we are dealing with a precatory provision which is predicated upon the "request" of a testator. With the realization that this State, and Virginia until recently, have trended toward the English rule which upholds precatory provisions as trusts, nevertheless, a very clear weight of authority is to the effect that the word "request" is not to be taken as directive but merely as suggestive. 49 A.L.R. 10 at page 69, 70 A.L.R. 321, page 326, 107 A.L.R. 896,

I do not agree that the word "request" as used by the testator is unambiguous, since the majority is ascribing to it a meaning against the clear weight of authority. However, I do not believe the major difficulty we are here confronted with can be limited to that one clause. I think the real inconsistency lies in the fact that the testator, after plainly devising all of his land to his brother, followed with the "request" as against the interests of the "first taker", who is the preferred object of his bounty.

Of course, oral testimony is admitted for the purpose of establishing circumstances surrounding the testator at the time his will was executed, and also for the purpose of showing a latent ambiguity and clarifying the meaning of the testator when such ambiguity exists. It strikes me that under certain circumstances words with as elastic a meaning as the word "request", judged, of course, by the context, which in this instance involves two ambiguities, would be looked upon as of doubtful meaning even under the English rule relating to precatory trusts. I do not believe that this would be enlarging the scope of the so-called "oral" will in the least, and it would avoid, to my mind, the practical inconsistency of admitting oral proof in explanation of two ambiguities in a seven-line will, and excluding testimony to explain the meaning the testator meant to convey by the word "request", the uncontradicted testimony in this record showing beyond peradventure that he did not mean to limit the power of disposition of his brother, C. F. Hedrick, but did intend to devise to him an estate in fee simple.

I concede that the question here involves secondarily the question of whether West Virginia favors a distinct and independent principle, or whether this State is willing to correlate our legal principles with those of other jurisdictions.