IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 

January 2019 Term 

_______________ 

No. 17-0857 

_______________ 

JONATHAN E. PRESNELL, SR., 

Petitioner 

v. 

ESTON J. PRESNELL, III, and LARRY A. WOLFE, JR., individually 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 Respondent 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 VIRGINIA
CHIEF JUSTICE WALKER delivered the Opinion of the Court. 
i 

SYLLABUS BY THE COURT 

1. “A writ of prohibition will not issue to prevent a simple abuse of 

discretion by a trial court. It will only issue where the trial court has no jurisdiction or 

having such jurisdiction exceeds its legitimate 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 entertain and issue the writ of prohibition 

for cases not involving an absence of jurisdiction, 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 adequate means, such as direct appeal, to 

obtain the desired relief; (2) whether the petitioner will be damaged or prejudiced in a way 

that is not correctable on appeal; (3) whether the lower tribunal’s order is clearly erroneous 

as a matter of law; (4) whether the lower tribunal’s order is an oft repeated error or 

manifests persistent disregard for either procedural or substantive law; and (5) whether the 

lower tribunal’s order raises new and important problems or issues of law of first 

impression. These factors are general guidelines that serve as a useful starting point for 

determining 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 clear error as a 

matter of law, should be given substantial 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 required 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.” Syllabus 

Point 3, Consolidated Gas Supply Corp. v. Riley, 161 W.Va. 782, 247 S.E.2d 712 (1978). 

4. “The paramount principle in construing or giving effect to a will is 

that the intention of the testator prevails, unless 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 testator, 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 and 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 away in 2014 and her will devised a 

family farm and other property to her three children – Petitioner Jonathan Presnell and 

Respondents Judith Wolfe and Eston Presnell, Jr. Petitioner sought to have the family farm 

partitioned in kind and argues that it was a specific devise, the sale of which requires a 

showing that the property is not amenable to partition in kind consistent with West Virginia 

Code §§ 44-8-11

 and 37-4-3.2 Co-executors of the estate, 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 that because the Testator granted a general power of sale to 

the co-executors and referenced the potential for sale of another property, the Testator 

showed approval of the concept of the sale of the family farm, even though it had been 

separately and specifically devised. We disagree and grant a writ of prohibition. The 

implication of possible sale relating to a separate piece of real property, even when viewed 

in combination with a general power of sale, is insufficient evidence of an intent to sell all 

other real property such that it overcomes the steps and findings required by West Virginia 

Code §§ 44-8-1 and 37-4-3 to sell a specific devise subject to a partition suit. 

                                                             1

 2014 Repl. Vol. 

2

 2011 Repl. Vol 
2 

I. FACTUAL AND PROCEDURAL BACKGROUND 

Testator Rosezella M. Presnell passed away at the end of 2014. Her three 

children, Petitioner Jonathan Presnell and Respondents Judith Wolfe and Eston Presnell, 

Jr., survived her. Testator was also survived by at least two grandchildren: Respondent 

Larry A. Wolfe, Jr., the son of Judith Wolfe, and Respondent 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 granted 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 real 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 complex in which Press Little 

Market and Press Snack Bar operates, 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 Thousand ($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 consisting of approximately 306 

acres shall be given to my three children to share equally 

outright and in fee simple. 

D. The residue and remainder of my property, real, personal 

and mixed, tangible or intangible, wherever situate, 

whether now owned or hereafter 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 Testator’s will and requested that his one-third portion be the portion 

of the family farm that adjoined his own property. Petitioner and co-executors reportedly 

disagreed as to how to value Petitioner’s portion, 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 Court of Mineral County alleging breach of fiduciary duty, 

tortious interference with an inheritance, and seeking partition of the real estate. In his 

complaint, Petitioner alleged that the co-executors had failed to make appropriate 

accounting of personal property and to properly manage and preserve the real estate. 

Specifically, Petitioner presented that Judith Wolfe had continued to operate her 

convenience store and gas station out of the commercial complex without making rental 

payments, and that collection of rental payments was one such source of liquidity to 

manage and settle the estate’s affairs. 
4 

Respondent Judith Wolfe filed a counterclaim, alleging that she had 

advanced a significant amount of money to the Testator during her life, and had 

subsequently made expenditures on behalf of the estate for which she sought 

reimbursement. While the litigation was pending, 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 allowing 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 partitioned in kind. 

At the hearing on Respondent co-executors’ motion, the circuit court took no 

evidence, but determined that the general power of sale bestowed 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 might sell real property, even real property 

specifically devised in her will. Extrapolating and applying that concept 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 interlocutory order that Petitioner 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 property was an interlocutory ruling, but seeks 
5 

relief under the collateral order doctrine or a writ of prohibition to prohibit the sale. We 

have recognized prohibition matters as an exception to the rule of finality, and so find it 

more appropriate to review this matter as seeking a writ of prohibition.3

 “A writ of 

prohibition will not issue to prevent a simple abuse of discretion by a trial court. It will 

only issue where the trial court has no jurisdiction 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 involving an absence of jurisdiction, 

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 adequate 

means, such as direct appeal, to obtain the desired relief; (2) 

whether the petitioner will be damaged or prejudiced in a way 

that is not correctable on appeal; (3) whether the lower 

tribunal’s order is clearly erroneous as a matter of law; (4) 

whether the lower tribunal’s order is an oft repeated error or 

manifests persistent disregard for either procedural or 

substantive law; and (5) whether the lower tribunal’s order 

raises new and important problems or issues of law of first 

impression. These factors are general guidelines that serve as a 

useful starting point for determining 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 (1998) (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 determining 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 circuit court’s apparent reliance on the co-executors having 

“entered into contracts with willing buyers” when those contracts were signed by the other 

parties after the institution of Petitioner’s partition suit, of which the prospective buyers 

were aware, and had no legal validity unless and until Petitioner affixed his name to the 

contracts. Respondents counter that the circuit court did not rely exclusively on the 

existence of the contracts and that the circuit court appropriately gave effect to the 

Testator’s overall intent that her co-executors should have authority to sell her real property 

as they see fit. 

West Virginia Code § 44-8-1 provides “[w]hen any will heretofore or 

hereafter executed gives to the executor named therein the power to sell the testator’s real 

estate, which has not been theretofore specifically devised therein, the executor may sell 

any such real estate unless otherwise provided in said will.” 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 Decedent’s will, the co-executors’ 

general power of sale does not permit them to sell the property outright. 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 required 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 prevails, 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 special 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 these 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 Virginia Code § 37-4-3 once Petitioner sought 

partition.10 But, it is also plain that the co-executors were granted a general power of sale 

and that the Testator contemplated that the property described in paragraph 7B, a different 

specific devise, might be sold. The circuit court found that the latter 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 application of West Virginia Code §§ 44-8-1 

and 37-4-3. 

As discussed above, if the general and specific intent of a testator cannot be 

reconciled, the general prevails over the specific if that general intent is “clearly and 

definitely expressed.” The circuit court determined 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 there 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 the circuit court in making that 

finding was referring only to the merchandise described in paragraph 7A, the circuit court 

did explicitly find that the real property described in paragraph 7B was specifically devised, 

and there can be no rational argument made that the devise of the real property described 

in paragraph 7B was a specific devise while the family farm was not. 

10 As we have noted, “[b]ut for the statute authorizing it, a sale of real estate could 

not be decreed in a suit for partition 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 “anticipated” sale of some or all of her real property. We disagree 

that Testator’s implication or anticipation 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 devised 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 naked 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 make superfluous specific devises, but rather would devise the 

property in trust to the executor for sale or otherwise specifically 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, while also specifically 

devising real property and including a clause in one of those devises 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 property that has not been specifically devised, under the first 

paragraph of West Virginia Code § 44-8-1, the executor has the authority and a mandatory 

duty to sell real estate that has been devised for the purpose that it be sold. 
10 

Important for our purposes, however, there is no language whatsoever in 

paragraph 7C suggesting that the 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 the Testator’s inclusion of language contemplating a 

possible sale of another piece of property could express so clear 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 that particular property rather than intended a sale, 

because the characteristics of the 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 devised 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, conjecture as to the Decedent’s intent 

through aid of only presumption and implication as to a different property falls short of the 

clear and definite expression of intent necessary to overcome the specific devise made 

                                                             12 The general power of sale alone does not provide the co-executors with the 

authority to sell any property specifically devised. W. Va. Code § 44-8-1 (“When any will 

heretofore or hereafter executed gives the executor named therein the power to sell the 

testator’s real estate, which has not been specifically devised therein, the executor may sell 

any such real estate unless otherwise provided in said will.”) (emphasis added). 
11 

here.13 To allow the sale of specifically devised 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 avoided wherever possible[,]”14 because the right to property is 

sacred: 

“[I]t would be at variance with fundamental and basic 

principles to say the Legislature intended to authorize a sale, 

instead of a division, for any light or trivial cause. So sacred is 

the right of property that to take 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 cotenant(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 liquidity to the estate and that co-executors 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 estate may only be sold when the personal 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). Respondents have not shown that an accounting of the personal 

estate has been completed and 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 contention 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, 386, 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 forward with the sale of 

Petitioner’s property under the proposed contracts and against his wishes, Petitioner would 

be prejudiced in a way that would not be correctable on appeal, and so has also met the 

second Hoover factor. Accordingly, we grant the writ of prohibition and preclude sale of 

the property pending the circuit court’s review under West Virginia 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 apply 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.