IN THE SUPREME COURT OF A PPEALS OF WEST VIRGINIA January 2019 Term

_______________ No. 17-0857

_______________ JONATHAN E. PRESNELL, SR., Petitioner

v. ESTON J. PRESNELL, III, and LARRY A. WOLFE, JR., i ndividually and as coexecutors of the ESTATE OF ROSEZELLA M. PRESNELL, deceased, JUDITH E. WOLFE, and ESTON J. PRESNELL, JR., Respondents

___________________ _____________________ ____________________ WRIT GRANTED

___________________ _____________________ ____________________ Submitted: January 9, 2019

Filed: February 15, 2019 David R. Collins, Esq. Nelson M. Michael, Esq. Tyler S. Rohrbaugh, Esq. Nelson M. Michael, L.C. Keyser, West Virginia Counsel for Petitioner Ramon Rozas, III, Esq. Rozas Law Office, LLC Cumberland, Maryland Counsel for the Respondents Eston Presnell, III, and Larry Wolfe Lawrence E. Sherman, Jr., Esq. Sherman Law Firm Romney, West Virginia Counsel for Responden t Judith E. Wolfe James E. Smith, II, Esq. Law Office of James E. Smith, II, Esquire Keyser, West Virginia Counsel for Respondent Eston Presnell, Jr. 

### FILED February 15, 2019 released at 3:00 p.m. EDYTHE NASH GAISER, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIACHIEF JUSTICE WALKER delivered the Opinion of the Court.i SYLLABUS BY THE COURT
1. “A writ of prohibitio n will not issue to prev ent a simple abuse of discretion by a trial court. It will only issue where the tria l court has no jurisdiction or having such jurisdiction exceeds its legitim ate powers. W. Va. Code 53-1-1.” Syllabus Point 2, State ex rel. Peacher v. Sencindiver , 160 W. Va. 314, 233 S.E.2d 425 (1977).

2. “In determining whether to entert ain and issue the writ of prohibition for cases not involving an absence of jurisd iction, but only where it is claimed that the lower tribunal exceeded its legitimate powers, this Court will examine five factors: (1) whether the party seeking the writ has no other ad equate means, such as direct appeal, to obtain the desired relief; (2) whether the petiti oner will be damaged or prejudiced in a way that is not correctable on appeal; (3) whether th e lower tribunal’s order is clearly erroneous as a matter of law; (4) whether the lower tr ibunal’s order is an oft repeated error or manifests persistent disregard for either proce dural or substantive law; and (5) whether the lower tribunal’s order raises new and importa nt problems or issues of law of first impression. These factors are general guideline s that serve as a useful starting point for determining whether a discreti onary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that th e third factor, the existence of clear error as a matter of law, should be given subs tantial weight.” Syllabus Point 4, State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d 12 (1996).ii 3. “By virtue of W. Va. Code, 37–4–3, a party desiring to compel partition through sale is require d to demonstrate that the prope rty cannot be conveniently partitioned in kind, that the inte rests of one or more of the pa rties will be promoted by the sale, and that the interests of the other partie s will not be prejudiced by the sale.” Syllabus Point 3, Consolidated Gas Supply Corp. v. Riley , 161 W.Va. 782, 247 S.E.2d 712 (1978).

4. “The paramount princi ple in construing or giving effect to a will is that the intention of the testator prevails, unle ss it is contrary to some positive rule of law or principle of public policy.” Syllabus Point 1, Farmers and Merchants Bank v. Farmers and Merchants Bank , 158 W. Va. 1012, 216 S.E.2d 769 (1975).

5. “The general intent of a testato r, clearly and definitely expressed in his will, prevails over particular or special intent expressed in a part of it, if it is impossible to give effect to both the general a nd the particular or special intent.” Syllabus Point 2, Hope Nat. Gas Co. v. Shriver , 75 W. Va. 401, 83 S.E. 1011 (1914).1 WALKER, Chief Justice: Rosezella Presnell (Testator) passed aw ay in 2014 and her will devised a family farm and other property to her th ree children – Petitioner Jonathan Presnell and Respondents Judith Wolfe and Es ton Presnell, Jr. Petitioner soug ht to have the family farm partitioned in kind and argues that it was a sp ecific devise, the sale of which requires a showing that the property is not amenable to partition in kind consistent with West Virginia Code §§ 44-8-1 1 and 37-4-3. 2 Co-executors of the es tate, two of the Testator’s grandchildren, sought a court order to sell the family farm. The circuit court ruled in favor of the co-executors and found th at because the Testator grante d a general power of sale to the co-executors and referenced the potential for sale of another property, the Testator showed approval of the concep t of the sale of the family farm, even though it had been separately and specifically devised. We di sagree and grant a writ of prohibition. The implication of possible sale relating to a separa te piece of real property, even when viewed in combination with a general power of sale, is insufficient evid ence of an intent to sell all other real property such that it overcomes th e steps and findings required by West Virginia Code §§ 44-8-1 and 37-4-3 to sell a specif ic devise subject to a partition suit.

1 2014 Repl. Vol.

2 2011 Repl. Vol2 I. FACTUAL AND PROCED URAL BACKGROUND Testator Rosezella M. Presnell passed aw ay at the end of 2014. Her three children, Petitioner Jonathan Presnell and Resp ondents Judith Wolfe and Eston Presnell, Jr., survived her. Testator wa s also survived by at least two grandchildren: Respondent Larry A. Wolfe, Jr., the son of Judith Wolfe, and Respond ent Eston Presnell, III, the son of Eston Presnell, Jr. These two grandchildren were designated in Testator’s will as the co-executors of her estate. Testator grante d her executors a general power of sale as follows: FIFTH: In administering my estate, my executors are authorized and empowered . . . to sell or exchange any property contained in my estate, whether re al or personal, and in case of sale, to sell at public auction or privately, for cash or credit, and upon such terms and conditions as they may deem best.

Relating to the division of her property, Testator’s will provided the following: SEVENTH: I give, will, devise and bequeath my property as follows: A. The merchandise associated with and located in Press Little Market and Snack Bar shall be given to my daughter, Judith E. Wolfe. B. My home, the commercial comp lex in which Press Little Market and Press Snack Bar op erates, Press Auto Mart and an eight car garage shall be divided between my three children to share equally outright and in fee simple. In the event that any or all of this property shall be sold, then before the proceeds are divided between my three children, the sum of Twenty Five Thou sand ($25,000.00) shall be given to my daughter Judith E. Wolfe. The remaining funds shall be divided equally between the three children.3 C. The family farm located on Middle Ridge in Mineral County, West Virginia cons isting of approximately 306 acres shall be given to my th ree children to share equally outright and in fee simple. D. The residue and remainder of my property, real, personal and mixed, tangible or inta ngible, wherever situate, whether now owned or hereaf ter acquired of which I die seized and possessed, I give to my three children to share equally outright and in fee simple.

Petitioner sought partition in kind of his portion of the family farm as devised in paragraph 7C of Te stator’s will and requested that hi s one-third portion be the portion of the family farm that adjo ined his own property. Petitione r and co-executors reportedly disagreed as to how to value Petitioner’s porti on, thereby precluding partition. The coexecutors alleged that Petitioner never provided a survey and appraisal of the property and that the estate was without sufficient liquidity to provide one. In May 2016, Petitioner filed a complaint in the Circuit Cour t of Mineral County alleging breach of fiduciary duty, tortious interference with an inheritance, and seeking par tition of the real estate. In his complaint, Petitioner alleged that the co-e xecutors had failed to make appropriate accounting of personal property a nd to properly manage and preserve th e real estate. Specifically, Petitioner presented that Jud ith Wolfe had conti nued to ope rate her convenience store and gas station out of th e commercial complex w ithout making rental payments, and that collection of rental paym ents was one such source of liquidity to manage and settle the estate’s affairs.4 Respondent Judith Wolfe filed a co unterclaim, alleging that she had advanced a significant amount of money to the Testator duri ng her life, and had subsequently made expenditures on behalf of the estate fo r which she sought reimbursement. While the litigation was pendi ng, the co-executors began negotiations to sell portions of the family farm . Petitioner refused to sign his name to the contracts, and the co-executors moved for a court order allowi ng the sale of the real property to the prospective buyers. Petitioner responded by moving for appointment of court commissioners to determine whether or not the property could be conveniently and equitably partiti oned in kind.

At the hearing on Respondent co-executo rs’ motion, the circuit court took no evidence, but determined that the general power of sale best owed upon the co-executors, when viewed in combination with the Testator’s apparent acknowledgment in paragraph 7B that the property including the commercial complex might be sold, implied that Testator approved of the concept that her executors mi ght sell real property, even real property specifically devised in her will. Extrapolati ng and applying that conc ept to paragraph 7C in which Testator devised the family farm, the court granted co-executors’ motion to sell the family farm. It is from this interloc utory order that Petitione r now seeks relief.

II. STANDARD OF REVIEW Upon filing this appeal and petition, Petitioner acknowledges that the circuit court’s grant of Respondents’ motion to sell pr operty was an interlocutory ruling, but seeks5 relief under the collateral order doctrine or a writ of prohibition to prohibit the sale. We have recognized prohibition matte rs as an exception to the ru le of finality, and so find it more appropriate to review this ma tter as seeking a writ of prohibition. 3 “A writ of prohibition will not issue to prev ent a simple abuse of discreti on by a trial court. It will only issue where the trial court has no jurisdic tion or having such jurisdiction exceeds its legitimate powers. W. Va. Code 53-1-1.” 4 Because Petitioner contends that the circuit court exceeded its legitimate powers in granting co-executors the power to sell real estate, the question of whether Petitioner is entitled to the relief sought is guided by this wellestablished framework: In determining whether to entertain and issue the writ of prohibition for cases not involvin g an absence of jurisdiction, but only where it is claimed th at the lower tribunal exceeded its legitimate powers, this Cour t will examine five factors: (1) whether the party seeking the writ has no other adequate means, such as direct appeal, to obtain the desired relief; (2) whether the petitioner will be da maged or prejudiced in a way that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erro neous as a matter of law; (4) whether the lower tribunal’s orde r is an oft repeated error or manifests persistent disregar d for either procedural or substantive law; and (5) whethe r the lower tribunal’s order raises new and important problems or issues of law of first impression. These factors are gene ral guidelines that serve as a useful starting point for determ ining whether a discretionary writ of prohibition should issue. Although all five factors need not be satisfied, it is clear that the third factor, the existence of

3 Robinson v. Pack , 223 W. Va. 828, 832, 679 S.E. 2d 660, 664 (2009) (citing Adkins v. Capehart , 202 W. Va. 460, 463, 504 S.E.2d 923, 926 (19 98) (recognizing prohibition matters as exception to rule of finality)).

4 Syl. Pt. 2, State ex rel. Peacher v. Sencindiver , 160 W. Va. 314, 233 S.E.2d 425 (1977).6 clear error as a matter of law, should be given substantial weight. 5

III. DISCUSSION Petitioner argues that the circuit court, despite finding that certain devises contained in paragraph 7 were specifically devised, nonetheless permitted sale of the family farm property without first dete rmining whether the property was amenable to partition in kind consistent with the directives of West Virginia Code §§ 44-8-1 and 37-4-3. Petitioner likewise takes issue with the ci rcuit court’s apparent reliance on the co-executors having “entered into contracts with willing buyers” wh en those contracts were signed by the other parties after the institution of Petitioner’s partiti on suit, of which the prospective buyers were aware, and had no lega l validity unless and until Petiti oner affixed his name to the contracts. Respondents counte r that the circuit court did not rely exclusively on the existence of the contracts and that the circ uit court appropriately gave effect to the Testator’s overall intent that he r co-executors should have authority to sell her real property as they see fit.

West Virginia Code § 44-8-1 provi des “[w]hen any will heretofore or hereafter executed gives to the executor named therein the power to se ll the testator’s real estate, which has not been theretofore specifi cally devised therein, the executor may sell any such real estate unless otherwise provided in said w ill.” Petitioner contends that

5 Syl. Pt. 4, State ex rel. Hoover v. Berger , 199 W. Va. 12, 483 S.E.2d (1996).7 because the family farm was specifically devised in Deced ent’s will, the co-executors’ general power of sale does not permit them to sell the property out right. Once Petitioner sought partition in kind , if the co-executors sought to sell the property by partitioning through sale he argues they were required to comply with the provisions of West Virginia Code § 37-4-3. As we have previously held, [b]y virtue of W. Va. Code, 37– 4–3, a party desiring to compel partition through sale is requi red to demonstrate that the property cannot be conveniently partitioned in kind, that the interests of one or more of the parties will be promoted by the sale, and that the interests of the other parties will not be prejudiced by the sale. [6] But, as we have also held, “[t]he paramount principle in construing or giving effect to a will is that the intention of the testator prev ails, unless it is contrary to some positive rule of law or principle of public policy.” 7 And, “[t]he general intent of a testator, clearly and definitely expressed in his will, prevails over particular or spec ial intent expressed in a part of it, if it is impossible to give effect to both the general and the particular or special intent.” 8

6 Syl. Pt. 3, Consol. Gas Supply Corp. v. Riley , 161 W.Va. 782, 247 S.E.2d 712 (1978).

7 Syl. Pt. 1, Farmers and Merchants Bank v. Farmers and Merchants Bank , 158 W. Va. 1012, 216 S.E.2d 769 (1975).

8 Syl. Pt. 2, Hope Nat. Gas Co. v. Shriver , 75 W. Va. 401, 83 S.E. 1011 (1914).8 So, in this matter we are faced with th ese two competing interests. On one hand, it is plain that the Testator specifically devised the family farm to her three children, 9 requiring strict application of West Virg inia Code § 37-4-3 once Petitioner sought partition. 10 But, it is also plain that the co-execu tors were granted a general power of sale and that the Testator contemplated that the pr operty described in paragraph 7B, a different specific devise, might be sold. The circuit c ourt found that the latt er evidenced a general intent on behalf of the Testator to have all of her property sold so as to overcome any specific devise and consequently prevented app lication of West Virginia Code §§ 44-8-1 and 37-4-3.

As discussed above, if the general and sp ecific intent of a testator cannot be reconciled, the general prevails over the specif ic if that general intent is “clearly and definitely expressed.” The circuit court dete rmined that there was “enough” language to

9 Respondents claim that West Virginia Code § 44-8-1 does not apply because the circuit court never explicitly found that the family farm was specifically devised. We disagree. First, the circuit court found that th ere were “some” specific devises in paragraph 7, obviously in an attempt to exclude the residuary clause in paragraph 7D from that collective. Second, contrary to Respondents’ assertion that th e circuit court in making that finding was referring only to th e merchandise described in pa ragraph 7A, the circuit court did explicitly find that the real property descri bed in paragraph 7B wa s specifically devised, and there can be no rational argument made th at the devise of the real property described in paragraph 7B was a specific devi se while the family farm was not.

10 As we have noted, “[b]ut for the statute au thorizing it, a sale of real estate could not be decreed in a suit for pa rtition thereof.” Syl. Pt. 1, Croston v. Male , 56 W. Va. 205, 49 S.E.136 (1904). Thus, sale of real estate subject to a partition suit is in derogation of the common law and requires application of West Virginia Code § 37-4-3.9 “imply” that the testator “anticipat ed” sale of some or all of her real property. We disagree that Testator’s implication or antic ipation of the possible sale of a particular piece of property, inferred by the circuit court from the specific devise in paragraph 7B, amounts to a clearly and definitely expressed intent by the Testator to sell all of her real property so as to overcome a specific devise. To that end, we also disagree that the Testator’s general and specific intent are irreconcilable.

Here, the Testator specifically devise d her home, commercial complex, and an eight-car garage to her three children, and, in a separate paragraph, specifically devised her family farm to her three children. Like many testators, Testator gave her co-executors a general power of sale. There is a marked distinction between a na ked power of sale and property devised to be sold. 11 That is, testators who clearly intend that their real property be sold would not typically ma ke superfluous specific devises, but rather would devise the property in trust to th e executor for sale or otherwise spec ifically instruct the executor to sell the property and to distribute the proceeds. In this case, the Testator created confusion in her will by granting the power of sale to her co-executors, wh ile also specifically devising real property and including a clause in one of those devise s that suggested or anticipated that particular property might be sold.

11 Unlike the second paragraph of West Virginia Code § 44-8-1 authorizing discretionary power to sell prope rty that has not been specific ally devised, under the first paragraph of West Virginia Code § 44-8-1, th e executor has the authority and a mandatory duty to sell real estate that has been de vised for the purpose that it be sold.10 Important for our purposes, however, th ere is no language whatsoever in paragraph 7C suggesting that th e family farm might be sold. To apply the general power of sale to allow for the sale of the family farm, then, requires a Herculean leap in logic. 12 It requires us to determine that th e Testator’s inclusion of language contemplating a possible sale of another piece of property could express so cl ear and definite an intent to sell that such clause might be extrapolated to provide for the sale of separately and specifically devised real property. Far shorter is the logical leap that the Testator simply foresaw the possibility of a sale of th at particular property rather than intended a sale, because the characteristics of th e property described in paragraph 7B are likely to render it incompatible with partition in kind, and Decedent wanted to ensure that her daughter, whose livelihood is grounded in the commercial complex devi sed therein, should receive an additional sum out of the proceeds. Such a reading gives effect to both the general and specific intent of the Testator with no stretch in reasoning.

Without having taken any evidence, conj ecture as to the Decedent’s intent through aid of only presumption and implication as to a differe nt property falls short of the clear and definite expression of intent nece ssary to overcome the specific devise made

12 The general power of sale alone does not provide the co-e xecutors with the authority to sell any property specifically devi sed. W. Va. Code § 44-8-1 (“When any will heretofore or hereafter executed gives the ex ecutor named therein the power to sell the testator’s real estate, which has not been spec ifically devised therein , the executor may sell any such real estate unless otherwise provi ded in said will.”) (emphasis added).11 here. 13 To allow the sale of specifically devi sed property without compliance with West Virginia Code § 37-4-3 is in violation of West Virginia Code § 44-8-1, and was clear error, meeting the third Hoover factor. Further, we have stated that “[f]orcible conversion of property into money is a voided wherever possible[,]” 14 because the right to property is sacred: “[I]t would be at variance with fundamental and basic principles to say the Legislatur e intended to authorize a sale, instead of a division, for any light or trivial cause. So sacred is the right of property that to ta ke it from one man and give it to another for private use is beyond the power of the state itself, even upon payment of full compensation.” 15 Likewise, [p]artition by sale, when it is not voluntary by all parties, can be a harsh result for the cote nant(s) who opposes the sale.

13 While the circuit court’s order does not appear to lend much credence to the argument, we wish to disabuse Respondents of the notion that sale of the family farm was necessary to provide liqui dity to the estate and that co-ex ecutors had a duty on behalf of the estate to sell it. We have long held that realty is afforded special protection of the law over that of personalty – the personal estate of the decedent is the principal source for satisfaction of debts; real esta te may only be sold when the pe rsonal estate is insufficient to do so. See W. Va. Code § 44-8-3 (2014 Repl. Vol.); Bank of Mill Creek v. Elk Horn Coal Co. , 136 W. Va. 36, 53–54, 65 S.E.2d 892, 901 (1951); George v. Brown , 84 W. Va. 359, 99 S.E. 509 (1919). Resp ondents have not shown that an accounting of the personal estate has been completed a nd applied for liquidity, nor does it appear that they have accounted for and applied for liquidity the merchandise gifted in paragraph 7A to Respondent Judith Wolfe. Consequently any co ntention that the co-executors had a duty on behalf of the estate to sell this real property without first having exhausted those sources of personal property or taking any affirmative steps to subject the realty to debts of the estate is unfounded.

14 Croston , 56 W. Va. at 210, 49 S.E. at 138.

15 Renner v. Bonner , 227 W. Va. 378, 38 6, 709 S.E.2d 733, 741 (2011) (quoting Croston , 56 W. Va. at 210, 49 S.E. at 138).12 This is because “‘[a] particular piece of real estate cannot be replaced by any sum of money, however large; and one who wants a particular estate for specific use, if deprived of his rights, cannot be said to receive an exact equivalent or complete indemnity by the payment of a sum of money.’” [16] For that reason, we find that if Respondents were permitted to go forw ard with the sale of Petitioner’s property under the proposed contracts and agains t his wishes, Petitioner would be prejudiced in a way that would not be co rrectable on appeal, and so has also met the second Hoover factor. Accordingly, we grant the wr it of prohibition and preclude sale of the property pending the circuit court’s review under West Virg inia Code § 37-4-3. As we have discussed, “‘[a] cotenant cannot have the land sold rather than partitioned, as a matter of right, the right of sale being only an incident of, and subordinate to the right of partition.’” 17 And, we have held that [b]y virtue of W. Va. Code 47-4-3, a party desiring to compel partition through sale is required to demonstrate that the property cannot be conveniently partitioned in kind, that the interests of one of more of the parties will be promoted by the sale, and that the interests of the other parties will not be prejudiced by the sale. [18] The circuit court is therefore instructed to ap ply West Virginia Code § 37-4-3 to determine whether the family farm is amenable to partition in kind before permitting sale of the property.

16 Ark Land Co. v. Harper , 215 W. Va. 331, 336, 599 S.E.2d 754, 759 (quoting Wight v. Ingram-Day Lumber Co. , 17 So.2d 196, 198 (Miss. 1944)).

17 Consol. Gas Supply Corp. , 161 W. Va. at 786, 247 S.E. at 714–15 (quoting Loudin v. Cunningham , 82 W. Va. 453, 454, 96 S.E. 59, 60 (1918)).

18 Id. at syl. pt. 3.13 IV. CONCLUSION For these reasons, we grant Petitioner’s writ of prohibition.

Writ granted.