## Facts

- Three siblings (Claude Black, I.D. Black, and Jessie Black) jointly owned a family farm (about 460 acres) in Pendleton County, West Virginia, along with related personal property.
- In 1950, the siblings executed and recorded a written agreement providing that, upon the death of any of them, the survivor(s) would take the deceased sibling’s interest in the real and personal property.
- In 1969, the siblings executed a joint will stating that, upon the death of any one of them, the deceased’s property would pass to the survivors; upon the death of the last survivor, the property “then remaining” would pass “in fee” to specified nieces and nephews.
- Claude and I.D. died before Jessie; the joint will was probated as to them, and Jessie accepted benefits under the joint will as the surviving sibling.
- Jessie later attempted to convey portions of the real property as if she owned it in fee simple.
- The nieces and nephews claimed Jessie held only a life estate under the joint will, with a remainder in fee in them.
- The circuit court ruled that Jessie owned a life estate (not a fee) in certain real and personal property, that certain nieces and nephews held remainder interests, and it modified two conveyances made by Jessie that exceeded her interest.

## Issues

1. Whether the joint will gave the last surviving testator a fee simple or only a life estate with a remainder over to the named nieces and nephews.
2. Whether the 1950 survivorship/partnership agreement controlled the disposition of the property, or was superseded by the later joint will after probate and acceptance of benefits.
3. Under what circumstances an attorney serving as executor/administrator may receive attorney’s fees in addition to fiduciary commissions from the estate.

## Decision

- The Supreme Court of Appeals of West Virginia affirmed the circuit court’s order in all material respects.
- The court held the last surviving testator took a life estate under the joint will, and the named nieces and nephews took a remainder in fee simple.
- The court held the 1950 survivorship/partnership agreement was superseded by the 1969 joint will where the will was inconsistent with the agreement, was probated as to the two deceased siblings, and the survivor accepted benefits under the will.
- The court held that attorney-executors may obtain attorney’s fees in addition to commissions only in exceptional circumstances, proven by clear and convincing evidence.

## Legal Principles

- A joint will that provides survivorship among testators and then gives the property “then remaining” to named beneficiaries “in fee” upon the death of the last survivor creates a life estate in the last survivor and a remainder in fee in the named beneficiaries.
- Under W. Va. Code § 36-1-16, limitations over (including remainders) are given effect unless a dispositive instrument grants a lawful power that defeats the limitation.
- A later joint will supersedes an earlier survivorship agreement covering the same property when the dispositions are inconsistent, the will is probated as to deceased testators, and the survivor accepts benefits under the will.
- A court disfavors an attorney’s dual recovery of fiduciary commissions and attorney’s fees from the same estate; extra legal fees are allowed only upon exceptional circumstances established by clear and convincing evidence.

## Conclusion

The court construed the siblings’ joint will to give Jessie Black only a life estate, with a remainder in fee to designated nieces and nephews, held that the later joint will displaced the earlier survivorship agreement after probate and acceptance of benefits, and imposed strict limits on attorney-executors seeking attorney’s fees beyond fiduciary commissions.


Black v. Black, 171 W. Va. 307, 298 S.E.2d 843 (1982)