West Virginia's high court rules that property held by a brother and sister as joint tenants with the right of survivorship belongs to the sister's heirs even though she was the first to die, thanks to the court's interpretation of a somewhat ambiguous clause in the brother's will. Hedrick v. Mosser (W. Va., No. 31268, Nov. 24, 2003).
In 1961, four parcels of real estate were deeded to Glendie E. Mosser, Jr., and his sister, Evangeline D. Phelps, as joint tenants with the right of survivorship. When Mrs. Phelps died intestate in 1990, the real estate became the sole property of Mr. Mosser. Mr. Mosser died in 1994, leaving a will executed in 1972 stating: "I give, devise, and bequeath unto my sister, Evangeline D. Phelps, my interest in real estate that we own jointly." A general residuary clause in the will left all his other possessions to his sons.
Mrs. Phelps's heirs asked the circuit court to determine the respective shares of any heirs in the property. The court held that Mr. Mosser's will devised nothing to either Mrs.Phelps or her heirs, and that the real estate at issue passed under the residuary clause to Mr. Mosser's sons. Mrs. Phelps's heirs appealed, arguing that Mr. Mosser's reference to "jointly owned" property was simply his means of identifying the property once held jointly with his sister and that it was Mr. Mosser's intent that his sister or her issue receive the real estate upon his death. They further maintained that the court erred by failing to apply West Virginia's anti-lapse statute.
The Supreme Court of Appeals of West Virginia (the state's highest court) reverses. Noting that absent any alternate disposition the property would have vested in the survivor of the two siblings in any case, the court can ascribe meaning to Mr. Mosser's inclusion of reference to the property jointly owned with Mrs. Phelps only by assuming that he intended Mrs. Phelps or her heirs to have the real estate upon his death. Referring to Mr. Mosser's use of the word "jointly," the court writes: "The intent of the testator should not be defeated by application of a strict technical view of the words employed, . . . " The court also holds that the anti-lapse statute applies to the property in question.
For the full text of this decision, go to: https://www.courtswv.gov/supreme-court/docs/fall2003/31268.htm
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