The Free Press WVThe Free Press WVOnce again the Willard F. Cottrill Estate issue was on the Gilmer County Commission’s agenda for the meeting on Friday, January 22, 2016.
There have been many issues involved in this estate going from Magistrate Court to Circuit Court and even to The WV Supreme Court of Appeals which made it difficult for the Commission to make a decision.
Following an order from the Gilmer County Circuit Court, Commissioners had 120 days to make a decision.
Gilmer County Prosecutor Gerry Hough laid out the options to the Commission. After discussion, the following decision was made by the Commission:
Since all the heirs except Marlea Cottrill had contested the will and in violation of the will, have disqualified themselves from the estate. Marlea Cottrill is entitled to the entire estate and Ruth Mitchell can stay in the house as long as she desires.
Please see the details below and in the VIDEO:

Willard F. Cottrill passed away on October 20, 2010.

His last will and testament was admitted to probate November 05, 2010 and recorded in Will Book No. 40, at page 427, Gilmer County Clerk’s Office.

By looking at Willard F. Cottrill will, it states:

“I direct that a residence on the said property be provided to my companion, Ruth Mitchell, for as long as she chooses to so reside, with this provision becoming void should she at any time choose or need to live elsewhere. Said residency shall not preclude divestiture of the property by my heirs, and is not intended to establish a life tenancy. “
FACTUAL BACKGROUND: PART ONE

    1. The property referred to in the is located in Linn, Gilmer County, West Virginia, as described by the deed recorded in Deed Book 370, at page 715, in the Office of the County Clerk, Gilmer County, West Virginia.

 

    1. Michael W. Murphy, Executor of the Estate of Willard F. Cottrill filed, with three estate heirs, a civil suit No. 1 l-C-20 in Gilmer County Circuit Court to ‘quiet title’ regarding the interest of Ms. Ruth Mitchell, the decedent’s companion. In that suit, the plaintiffs asked the Court to (a) declare that Ruth Mitchell has no right, title or interest in the property, and (b) order Ruth Mitchell to vacate the property.

 

    1. The Court granted Ruth Mitchell and Marlea Cottrill summary judgment in that civil suit and, during the motion hearing on the summary judgment hearing, the Court asked Plaintiff the question:

 

      • “ Well, let me ask you, though, one thing that you -part of that seems to me that you ignore that the decedent clearly wanted the terms and conditions of this will carried out as written and it says that nobody can contest this will and they’re not going to get anything; isn’t that true?“

 

      • After Michael Murphy and the three plaintiffs agreed that provision was in the will, the Court went on:

 

    • “And so I mean the situation is isn’t that close to what your clients are doing is contesting the provision in the will that says his companion is to live on the property?“
  1. The Court was referring to Article X of the Willard F. Cottrill will, which is an in terrorum clause as follows:
    • “IF ANY BENEFICIARY UNDER THIS WILL CONTESTS THIS WILL OR ANY OF ITS PROVISIONS, ANY SHARE OR INTEREST IN MY ESTATE GIVEN TO A CONTESTING BENEFICIARY UNDER THE WILL IS REVOKED AND SHALL BE DISPOSED OF AS IF THAT CONTESTING BENEFICIARY HAD NOT SURVIVED.“
  2. To make matters worse, Executor Michael Murphy and the three beneficiaries who lost their lawsuit to oust Ms. Mitchell decided to appeal Judge Alsop’s Gilmer County decision to the West Virginia Supreme Court of Appeals. In the Supreme Court of Appeals Memorandum Decision filed October 18, 2013, Judge Alsop’s decision in favor of Ruth Mitchell and Marlea Cottrill was affirmed. The Supreme Court wrote, that, “The relief that petitioners sought beyond clear title – that is, ejectment – is wholly inconsistent with the decedent’s directive that respondent be provided a residence.“ The legal bill for these actions totaled Twenty-Seven Thousand ($27,000.00) Dollars; Executor chose to charge one-fourth of that cost to Marlea Cottrill, who opposed the civil suit and appeal.

RECOMMENDATION #1:

    1. The County Commission, in order to finalize and settle the Estate of Willard F. Cottrill, should find that the civil lawsuit and its appeal were contests to the provisions of the will.

 

    1. In accordance with the clear and unambiguous language of the will, those beneficiaries who contested the Article V, Section 2 provision of the will should be declared contesting beneficiaries, per Article X of the will.

 

    1. Any share or interest in the will already distributed to those contesting beneficiaries shall be refunded to the estate forthwith.

 

    1. That the sole non-contesting beneficiary to the will is Marlea Cottrill, and Ms. Cottrill shall be declared the sole beneficiary of the estate of WillardF.Cottrill.

 

  1. Any legal expense of the contesting lawsuit and its appeal shall be charged to the Executor and three co-plaintiffs/petitioners personally.

FACTUAL BACKGROUND: PART TWO

In that aforementioned civil case of Michael Murphy, Executor etals v. Ruth Mitchell and Marlea Cottrill, 1 l-C-20, Circuit Judge Alsop held that, “…the Court finds the heirs who have inherited the property in dispute in this matter have a vested interest in said property.“ This finding was affirmed by the West Virginia Supreme Court of Appeals and field on October 18, 2013.

Based upon the provisions of the Willard F. Cottrill will, three of the beneficiaries entered a Purchase Agreement executed September 26 and 28, 2013 with Richard and Peggy Neal, recorded in Gilmer County Deed Book 520, at page 11, proposing to sell 38+ acres of the 43.66 acres owned by the Willard F. Cottrill heirs for Forty Thousand ($40,000.00) Dollars, with $25,000.00 paid as a cash down payment, with terms for the balance of $15,000.00 at $250.00 monthly for five years.

There was a Supplemental Land Agreement dated October 21, 2013 recorded in Gilmer County Deed Book No. 520, at page 13, between Buyers Richard and Peggy Neal and three heirs of Willard F. Cottrill – Mark Cottrill, Alan Cottrill, and Venita Murphy, Sellers. Buyers, in lieu of the monthly installments previously agreed to, were to transfer ownership of a 1968 Chevrolet RS/SS Camaro, in ‘excellent condition’ to the Sellers.

The Sellers agreed to grant unto Buyers first right of refusal to adjoining 1.9 acres with a two story wood frame house and Sellers agreed to forgo rent payments for a period of one and one-half years. There was no money from the sale of this property deposited into the estate and little information is available concerning the Camaro, its value or its whereabouts.

In a civil action styled Marlea Cottrill v. Richard Neal, a copy of the West Virginia DMV Bill of Sale from Richard D. Neal, owner of a 1968 Camaro, values that vehicle at $20,400, with notations of $15,000.00 for the balance of payment of the $40,000.00 and $5,400.00 for trailer rent on the 1.9 acres. Also filed in that matter were two receipts between Richard D. Neal and Mark Cottrill, one for $25,000.00 and the other for $15,000.00, with notations assigning the consideration paid for.

On April 28, 2015, Richard D. Neal and Peggy A. Neal filed a deed granting them 42.31 acres as surveyed, on Little Ellis Run, Gilmer County, executed by three heirs, Mark Cottrill, Alan Cottrill, and Venita Murphy. Said deed is recorded in Deed Book 53 8, at page 410 in the Gilmer County Clerk’s Office. Noticeably vacant is the signature line for Marlea (Cottrill) Hageman.

The aforementioned deed contains a disclaimer by the scrivener, emphasizing that no title examination was performed prior to drafting and execution of the same. The language of the deed grants unto the Neals ‘with covenants of General Warranty’ and purports to convey all the grantors’ interest in and to the acreage surveyed. A plat of the survey, completed by S. Patrick Roberts of Elk Land Management, is recorded in Plat Book 5, at page 93, in the Office of the Gilmer County Clerk.

Article V, Section of the will provides that,

“…with the further declaration that if any of my children attempt to circumvent these provisions to the detriment of the others, then that person shall forfeit any and all claims to this property and said property shall be divided among the remaining children.“
RECOMMENDATION #2:

The County Commission, in order to resolve this matter equitably with priority to honoring the express, written preferences of the decedent, Willard F. Cottrill, must decide whether to follow Recommendation # 1. If the Commission concludes that the three heirs joined Executor Murphy in contesting the will, their estate benefits shall be divested. All cash distributions from the estate to Mark Cottrill, Alan Cottrill, and Venita Murphy must be returned to the estate forthwith.

If the County Commission concludes that there was no will contest regarding Ruth Mitchell but that the real estate sale and conveyance was an attempt by the three heirs, Mark Cottrill, Alan Cottrill, and Venita Murphy to circumvent the will provisions to the detriment of Marlea Cottrill, the three heirs’ interests in the real property devised shall be vested in Marlea Cottrill alone.

The County Commission must look to the real estate conveyance to the Neals as void ab initio, and the Neals’ purchase consideration must be refunded to the Neals by the three excluded heirs – from their personal accounts, with an adequate reimbursement to the Neals for the survey cost.

If the County Commission finds that the real estate sale and transfer was somehow valid/enforceable and not reversible in equity, then the transfer shall be classified as a conveyance of three-fourths interest in the surface and three-fourths interest in the mineral interest described in the 42.31 acres deed of record. The remaining one-fourth interest in both surface and the mineral title shall inure to Marlea Cottrill, as well as full title to the residue tract of 1.3 5 acres and a double wide mobile home.

In such a proposed settlement, the County Commission must decide whether the three divested heirs owe substantial disbursement monies as well as a portion of the purchase price paid by Neals in cash for the acreage, with credit for the ‘assigned value’ of the 1968 Camaro.