WEST VIRGINIA RECORD

CHARLESTON - Because the intentions in his will were clear enough, the state Supreme Court has ruled a Gilmer County woman may continue to reside in the home she shared with her former companion.

In a 4-1 decision, the court affirmed the ruling Gilmer Circuit Judge Jack Alsop made in August 2012 granting summary judgment to Ruth Mitchell in a suit to quiet title brought by the estate and heirs of Willard Cottrill.

In a memorandum opinion issued Oct. 18, two days shy of the third anniversary of Cottrill, 73, dying suddenly and under suspicious circumstances, the court said the effort by the estate’s executor, Michael Murphy, Cottrill’s son-in-law, and the heirs to eject Mitchell from the modular home she shared with Cottrill on his 42-acre property in Linn is “wholly inconsistent,” with his last will and testament.

Memorandum opinions are issued by the court in cases that present no new issues of law and would not be aided by oral argument. Chief Justice Brent Benjamin cast the dissenting vote.

According to court records, Cottrill’s will was admitted into probate on Nov. 5, 2010. In it, he directed that a residence be provided for Mitchell “for so long as she chooses to reside, with this provision becoming void should she at any time choose or need to live elsewhere.”

Cottrill also specified that Mitchell’s “residency shall not preclude divestiture of the property by my heirs, and is not intended to establish a life tenancy.” Furthermore, he “direct[ed] that income from the rental units on my property be used for taxes and upkeep of the remainder of the property including the unit occupied by Ruth Mitchell, and the parcel referenced in the above provision.”

On June 17, 2011, Murphy, along with his wife, Venita, and her brothers Mark and Alan Cottrill, residents of Syracuse, N.Y., filed suit seeking an order to compel Mitchell to “vacate the premises.”

However, on Aug. 21, 2012, the eve of a trial date in the case, Alsop granted Mitchell’s motion for summary judgment recognizing, as Cottrill specified in his will, she had a right to reside on the property so long as she desired.

In affirming Alsop’s decision, the court clarified that Mitchell’s residence is no way construed to be a life estate or tenancy. Regardless, ordering her out of the dwelling she’s called home for the last decade would go against Cottrill’s express wishes.

“The relief [the estate and the heirs] sought beyond clear title - this is, ejectment - is wholly inconsistent with [Cottrill’s] directive that [Mitchell] be provided a residence,” the court said.

“Inasmuch as the circuit court was called upon to construe Mr. Cottrill’s will in this action to quiet title, it appropriately followed the tenant of this Court: 'The cardinal principle in construing a will is to ascertain the intent of the testator as expressed in the wills and codicils, giving consideration to the surrounding circumstances.'”

The estate, and the heirs were represented by Staci N. Criswell with Dinsmore and Shohl. Mitchell was defended by Gassaway attorney Dan Grindo.

West Virginia Supreme Court of Appeals case number 12-1213
Gilmer Circuit Court case number 11-C-20