CHARLESTON – The West Virginia Supreme Court of Appeals has issued an order allowing the moving of a World War I soldier and Medal of Honor recipient’s remains from a remote cemetery to the Donel C. Kinnard Memorial State Veterans Cemetery.
Chester Howard West’s remains currently are located in a remote, overgrown cemetery in Mason County’s Chief Cornstalk Wildlife Management Area, according to the June 7 opinion.
Justice Beth Walker authored the majority opinion. Justice Allen Loughry II dissented and filed a separate opinion. Justice Margaret Workman also dissented and filed a separate opinion.
Mason County sought authorization to disinter West’s remains and to bury him with full military honors at the Gold Star Family Memorial Monument at the Donel C. Kinnard Memorial State Veterans Cemetery.
“Hershel Woodrow Williams … filed the petition for Mr. West to be recognized as a recipient of the highest award a citizen can receive for bravery and valor,” the majority opinion states. “In an order dated March 23, 2016, the circuit court of Mason County granted Mr. Williams’ petition.”
However, Roger VanSickle urged the Supreme Court to reverse the order on the grounds that the circuit court lacked the authority to rule on the question of disinterment for West’s remains.
VanSickle argued that the circuit court abused its discretion in concluding that the equities favor disinterment over the wishes of the surviving spouse at the time of West’s death and the living VanSickle family relatives.
Williams argued that the circuit court properly exercised its equitable jurisdiction and carefully balanced the equities in favor of disinterment of West’s remains. He argued that moving West’s remains would be done so that he could be honored for his heroic service and his grave could be properly maintained.
“Upon consideration of the parties’ briefs and arguments, the submitted record and pertinent authorities, we affirm the March 23, 2016, order of the circuit court of Mason County,” the majority opinion states.
West was a 20-year-old first sergeant in an automatic rifle section of the 363rd Infantry Regiment, United States Army’s 91st “Wild West” Division. After the war, he settled in Mason County and married Maggie Elizabeth VanSickle in 1932. He was shot and killed by Sam McCausland while working on the McCausland farm in Mason County in 1935.
Maggie VanSickle had her husband buried at the VanSickle family cemetery that is now within the property encompassing the Chief Cornstalk Wildlife Management Area and, once acquired by the state, the road leading to the family cemetery was gated and, with the passage of time, the road merged with the surrounding forest.
In 2015, a Boy Scout learned of West’s Medal of Honor status and his burial in Mason County and sought to locate the VanSickle family cemetery as an Eagle Scout project. The Boy Scout, with the help of family members and other scouts, located the cemetery and cleared it.
On Sept. 14, 2015, Williams filed his petition to move West’s remains to the Veterans Cemetery. Roger VanSickle alleged that plans had been under way to clear the cemetery when the Boy Scout had requested permission to do so as his Eagle Scout project .
On Feb. 29, 2016, Mason Circuit Court conducted a hearing and heard testimony from five witnesses. On March 26, 2016, it granted Williams permission to enter and carefully remove West’s remains and reinter him at the Veterans Cemetery. Roger VanSickle then appealed.
“Mr. Williams has demonstrated the integrity and capacity to provide a most suitable and deserving resting place for Mr. West’s remains,” Walker wrote. “Accordingly, we hold that the Circuit Court of Mason County did not abuse its discretion in concluding that the equities favored the disinterment of the remains of Mr. West and granting the petition of Mr. Williams.”
In his dissenting opinion, Loughry wrote that although Williams’ intent and purpose were clearly honorable, the circuit court should have dismissed the petition on its face given the obvious lack of standing to file the action, as he had no familial or legal relationship to West.
“Unlike Mr. West, there may not be someone to defend a decedent’s final resting place, but perhaps a recorded will containing specific burial instructions would carry some weight when a legal action is instituted seeking to disinter a person twenty, fifty or, as in the case at bar, nearly a hundred years later,” Loughry wrote.
Workman wrote in her dissenting opinion that the VanSickle family is West’s family and that Williams is a legal stranger to the West/VanSickle family.
“Even though he prevailed in this case, I encourage Mr. Williams to reconsider his position, respect the wishes of the VanSickle family and leave Sgt. West’s remains where they have been laid to rest,” Workman wrote. “The most excellent way to honor our nation’s brave military heroes who sacrificed to preserve our freedoms is to follow the rule of law, without fear or favor. The majority has failed to do so.”
W.Va. Supreme Court of Appeals case number: 16-0410