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STATE OF WEST VIRGINIA

SUPREME COURT OF APPEALS

Lester Yost, Lewis Yost, and Rosalie Yost,

Defendants Below, Petitioners

vs) No. 19-0605 (Morgan 18-C-6)

Mary Ann Yost,

Plaintiff Below, Respondent

MEMORANDUM DECISION

Siblings Lester Yost, Lewis Yost, and Rosalie Yost, petitioners herein and defendants 

below, by counsel Richard G. Gay, appeal the June 6, 2019, order of the Circuit Court of Morgan 

County that reversed the Morgan County Commission’s February 1, 2018, admission to probate 

of the will of petitioners’ brother, decedent Steven Switzer Yost. The circuit court ordered that the 

estate shall proceed as if Steven Switzer Yost died intestate and that his wife, Respondent Mary 

Ann Yost, shall inherit 100% of her husband’s estate, however constituted. Respondent, by counsel 

Eric S. Black, filed a response in support of the circuit court’s order.

This Court has considered the parties’ briefs and the record on appeal. The facts and legal 

arguments are adequately presented, and the decisional process would not be significantly aided 

by oral argument. Upon consideration of the standard of review, the briefs, and the record 

presented, the Court finds no substantial question of law and no prejudicial error. For these reasons, 

a memorandum decision affirming the circuit court’s order is appropriate under Rule 21 of the 

Rules of Appellate Procedure.

On August 22, 2001, Steven Yost (“decedent”) executed his last will and testament (the 

“will”). The “Disposition and Residuary Clause” in the will provides: 

I give, devise, and bequeath the rest, residue and remainder of my estate real 

and personal to MARY ANN WATKINS, if she survives me. 

If MARY ANN WATKINS fails to survive me, I give, devise, and bequeath 

the rest, residue, and remainder of my estate real and personal property to JOSEPH 

L. YOST, LESTER G. YOST, LEWIS M. YOST, and ROSALIE L. YOST, in 

equal shares, share and share alike. 

FILED

September 4, 2020

EDYTHE NASH GAISER, CLERK

SUPREME COURT OF APPEALS

OF WEST VIRGINIA
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Although decedent had been previously married to his first wife, Margaret Yost, they were 

no longer married when he executed his 2001 will. Subsequently, in 2006, decedent married his 

second wife, the “Mary Ann Watkins” named in decedent’s will; however, Mary Ann Watkins 

died in 2007. In 2012, decedent married his third wife, Respondent Mary Ann Daily Yost. Soon 

thereafter, he added respondent to his checking account as a joint account holder and made her the 

beneficiary of his IRA and his pension upon his death. Decedent died about five years later, on 

September 22, 2017. No children were ever born to petitioner and he never changed his 2001 will. 

Respondent received the benefits of decedent’s checking account, IRA, and pension upon his 

death. Also, at the time of his death, decedent owned 13.5 acres of developed real estate valued at 

$155,000. Decedent and respondent lived in a house on that property during their marriage. The 

primary dispute in this case appears to regard decedent’s real estate, which originally belonged to 

decedent and his siblings’ (petitioners’) parents. 

In accordance with West Virginia Code § 41-5-10, the Morgan County Commission (the 

“Commission”) approved the ex parte admission to probate of decedent’s 2001 will. Respondent 

objected. 

At a January 17, 2018, hearing, the Commission heard respondent’s objections to the ex 

parte admission of decedent’s will. Respondent claimed that under West Virginia Code § 42-3-7, 

which addresses premarital wills, she should inherit the intestate share of decedent’s estate, i.e., 

100% of the estate, because decedent died intestate and without issue. Respondent also argued that 

Mongold v. Mayle, 192 W. Va. 353, 452 S.E.2d 444 (1994), was applicable to this case. In 

Mongold, the Court said, 

It is clear . . . that the purposes underlying W.Va.Code, 42-3-1 [1992] and 

W.Va.Code, 42-3-7 [1992] are different: W.Va.Code, 42-3-1 [1992] protects a 

surviving spouse from disinheritance and W.Va.Code, 42-3-7 [1992] gives a 

surviving spouse an intestate share in the amount the decedent spouse would have 

given the surviving spouse had he or she thought about the effect of the premarital 

will. Common sense dictates that the intestate share provided for under W.Va.Code, 

42-3-7 [1992] does not preclude a surviving spouse from taking an elective share 

pursuant to W.Va.Code, 42-3-1 [1992]. To hold otherwise would allow a spouse to 

disinherit his or her spouse, thereby defeating the purpose behind the elective-share 

theory of the Revised Uniform Probate Code.

Id. at 357, 452 S.E.2d at 448. Respondent argued that because decedent had no children, she was 

entitled to the intestate share without having to elect to receive that share. 

Petitioners also appeared at the January 17, 2018, Commission hearing. They argued, 

among other things, that Mongold was distinguishable because it involved a divorce from a first 

marriage and, therefore, was inapplicable to the instant case. 

On February 1, 2018, the Morgan County Commission entered its “ORDER APPROVING 

THE EX PARTE ADMISSION TO PROBATE OF THE LAST WILL AND TESTAMENT OF 

[DECEDENT] DATED AUGUST 22, 2001[.]” The Commission rejected respondent’s argument 
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and found that “under the facts of this case, [decedent’s] remarriage did not revoke the prior 

disposition of the former spouse.” 

On April 3, 2018, respondent initiated a civil action in the circuit court challenging the 

Commission’s February of 2018, order. Thereafter, respondent filed a motion for summary 

judgment arguing that the Commission erred in approving the ex parte admission of decedent’s 

will. Petitioners filed a cross-motion for summary judgment asserting that respondent was not 

entitled to an intestate share under West Virginia Code § 42-3-7. Following an evidentiary hearing, 

the circuit court granted summary judgment to respondent. The court found that, based on West 

Virginia Code § 42-3-7, decedent died intestate and, therefore, respondent was entitled to inherit 

her intestate share, i.e., one hundred percent of decedent’s estate.

Petitioners now appeal and, in their first assignment of error, argue that the circuit court 

erred in granting summary judgment to respondent.

“A circuit court’s entry of summary judgment is reviewed de novo.” Syl. Pt. 1, Painter v. 

Peavy, 192 W. Va. 189, 451 S.E.2d 755 (1994). Further, “[w]here the issue on appeal from the 

circuit court is clearly a question of law or involving an interpretation of a statute, we [also] apply 

a de novo standard of review.” Syl. Pt. 1, Chrystal R.M. v. Charles A.L., 194 W. Va. 138, 459 

S.E.2d 415 (1995).

Petitioners argue that respondent is not entitled to an intestate share because, under West 

Virginia Code § 42-3-7(a)(3), decedent provided for respondent with transfers outside the will 

including his checking account, his IRA, and his pension benefits, and that his intent to make such 

a transfer can be “reasonably inferred from the amount of the transfer or other evidence.” As noted 

above, West Virginia Code § 42-3-7(a)(3) provides as follows: 

(a) If a testator’s surviving spouse married the testator after the testator 

executed his or her will, the surviving spouse is entitled to receive, as an intestate 

share no less than the value of the share of the estate he or she would have received 

if the testator had died intestate as to that portion of the testator’s estate, if any, that 

neither is devised to a child of the testator who was born before the testator married 

the surviving spouse and who is not a child of the surviving spouse nor is devised 

or passes to a descendant of such a child, unless:

. . . .

(3) The testator provided for the spouse by transfer outside the will and the 

intent that the transfer be in lieu of a testamentary provision is shown by the 

testator’s statements or is reasonably inferred from the amount of the transfer or 

other evidence.

(Emphasis added.) Petitioners assert that upon decedent’s death, respondent received decedent’s

IRA worth $40,796.68, $8,541.07 from decedent’s checking account, and $421.10 each month in 

surviving spouse benefits from decedent’s pension. Thus, petitioners claim respondent was more 

than adequately provided for outside of decedent’s will. Petitioners also aver that respondent 

wrongfully claims these funds were causa mortis gifts and, therefore, not testamentary in nature. 

Petitioners highlight that for such funds to be causa mortis gifts, certain elements must be satisfied: 
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In order to make an effective gift, whether it be Inter vivos or Causa mortis, the 

donor must consummate the transfer as a present gift to the donee, thereby giving 

such donee the present right to immediate possession of the gift and divesting the 

donor of possession and all dominion and control over the thing given. This is 

distinguishable from a gift to be made in the future which connotes a testamentary 

disposition. Waugh v. Richardson, 107 W.Va. 43, 147 S.E. 17; Dickeschied v. 

Exchange Bank, et al., 28 W.Va. 340; 1 Bowe-Parker: Page on Wills, Gifts Causa 

Mortis, s 7.9, s 7.11.

The foregoing principle is succinctly stated in Harrison on Wills and 

Administration, Second Edition, Gifts Causa Mortis, s 83, as follows: ‘* * * It has 

been repeatedly decided that where a gift has no effect until after the death of the 

donor, the donor retaining the dominion and control over the property, it cannot be 

sustained as a valid gift either Inter vivos or Causa mortis but such a gift is 

testamentary and all the provisions of the testamentary law must be complied with 

to make it effective. Thus, the broad distinction between all forms of gifts and 

testamentary dispositions. A gift testamentary in character cannot have any effect 

until after death. A gift not testamentary must take effect at once.’

Grace v. Klein, 150 W. Va. 513, 518-19, 147 S.E.2d 288, 292 (1966). In light of Klein, petitioners 

argue that respondent cannot prove the benefits resulting from decedent’s death are causa mortis 

gifts because decedent never divested himself of dominion and control over his IRA, bank account, 

and pension benefits during his life, nor did respondent take “immediate possession” of those 

funds. 

We disagree and find that the circuit court did not err in reversing the County Commission 

and in finding that decedent’s estate shall be administered as if decedent died intestate, and

respondent shall inherit 100% of decedent’s estate however constituted. The circuit court based is 

conclusion on the following findings: First, petitioners presented no evidence that decedent made 

his will in contemplation of marriage to his second wife, Mary Ann Watkins. Second, decedent’s

will “does not express the intention that it is to be effective notwithstanding any subsequent 

marriage.” Third, decedent did not expressly provide for respondent by transfer outside the will in 

lieu of a testamentary provision. Accordingly, the court found that West Virginia Code § 42-3-7 

(1992) applies as follows: 

The . . . thing that the [c]ourt has to consider then is whether or not there is 

any evidence that the testator intended to provide for [respondent] outside of the 

Will under West Virginia Code § 42-3-7(a)(3). The only evidence introduced 

before this [c]ourt in response to the issue was the testimony of [respondent, who] 

stated that the decedent . . . had informed [respondent] that he intended for her to 

have all the property [including his real property]. The [c]ourt never heard from 

any other witnesses that they had been promised the property from [decedent] and 

no writings have been provided to this [c]ourt that would signify to the [c]ourt the 

decedent’s intent. Without there being any other evidence that the decedent actually 

intended his transfer of the IRA account to be in lieu of her testamentary share, then 
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[t]his [c]ourt does not find that there is any evidence to support that contention. 

Merely adding somebody as a paid on death to an account does not evidence, in 

this [c]ourt’s opinion, that somebody contemplated basically anything pertaining to 

their [w]ill.

 Shortly after his third marriage, decedent added respondent to his checking account and 

made her the surviving beneficiary of his IRA and his pension. Contrary to petitioners’ claims, 

decedent’s actions do not evidence that he wished to exclude respondent from his will, as 

petitioners claim. Instead, decedent’s actions evidence his wish to provide for his wife in the event 

that he predeceased her.

Importantly, at the hearing in this matter, respondent testified as follows:

Question: When you got married [to decedent] did he have any conversation with 

you . . . about what you would inherit if he passed away?

Respondent: The properties, the real estate, the house, things like that.

Question: He did have a conversation with you about what you would inherit?

Respondent: Yes, because he was looking out the window and he told me, he said, 

that boundary is here and here and he said, you need to know because you are going 

to get it all. 

Question: The boundary he was pointing at is the 13 acres we’ve set forth as the 

property he owned when he died?

Respondent: Yes.

Question: And he told you these boundaries and you get it when I pass away?

Respondent: Yes.

Question: Did he ever tell you that he provided some other method of providing for 

you when he died?

Respondent: No. 

Petitioners presented no evidence rebutting respondent’s testimony. Nor was there any 

evidence that decedent wanted his wife to leave the marital home upon his death so that his siblings 

could inherit his real estate. Accordingly, we find that the circuit court did not err in finding that

the “unrebutted testimony was that [decedent] wanted his current wife . . . to have all his estate.” 

West Virginia Code § 42-3-7 entitled respondent to receive 100% of decedent’s estate because he 

executed his will prior to his marriage to respondent and he had no children. 
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Further, West Virginia Code § 42-1-3(a) provides that the intestate share of a surviving 

spouse is “[t]he entire estate if: (1) No descendant of the decedent survives the decedent[.]” 

Because petitioner had no children, respondent properly received decedent’s entire estate. 

Accordingly, the circuit court correctly concluded that, 

the applicable law in this case is W. Va. Code § 42-3-7(a), and that statute provides, 

“If a testator’s surviving spouse married the testator after the testator executed his 

or her will, the surviving spouse is entitled to receive, as an intestate share no less 

than the value of the share of the estate he or she would have received if the testator 

dies intestate as to that portion of the testator’s estate. 

In this case, there were no other children born of the testator, and therefore, if he 

had died without a Will, [respondent] would, in fact, receive 100% of the estate and 

the [c]ourt does find that all of those facts exist to support that.

Accordingly, we find no error. 

In petitioners’ second “assignment of error,” they claim that “[t]he circuit court correctly 

applied the law in finding that West Virginia Code § 41-1-6(B) does not apply to this case and that 

remarriage does not provide a basis to revoke a prior will.” (Emphasis added.) Clearly, this 

statement alleges no error and, instead, endorses the circuit court’s decision. Rule 10(c)(3) of the 

West Virginia Rules of Appellate Procedure requires that an appellate brief to this Court list “the 

assignment of error” presented for review. See also W. Va. Code § 58-5-6 (“Petitions for appeal 

shall be filed and processed in accordance with the rules of appellate procedure promulgated by 

the Supreme Court of Appeals.”). Thus, petitioners’ brief fails to comport with Rule 10(c)(3). 

Based upon petitioners’ failure to comply with this Court’s Rules of Appellate Procedure and West 

Virginia Code § 58-5-6, we do not further address their second “assignment of error.” See

Administrative Order entered December 10, 2012, Re: Filings That Do Not Comply With the Rules 

of Appellate Procedure; and Rule 10(j) of the West Virginia Rules of Appellate Procedure (“[t]he 

failure to file a brief in accordance with this rule may result in the Supreme Court refusing to 

consider the case . . . or imposing other sanctions as the Court may deem appropriate”).

Accordingly, for the forgoing reasons, we affirm the Circuit Court of Morgan County’s

June 6, 2019, order.

Affirmed.

ISSUED: September 4, 2020 

CONCURRED IN BY:

Chief Justice Tim Armstead

Justice Margaret L. Workman

Justice Elizabeth D. Walker

Justice Evan H. Jenkins

Justice John A. Hutchison