Mrocko v. Wright
In Mrocko v. Wright, 172 W. Va. 616, 309 S.E.2d 115 (1983), the testator left all her property to her husband, her sister Mrs. Tomich, and her sister Mrs. Wright. The testator provided that her two sisters, on a share and share alike basis, were to receive certain specified devises. Id. at 617, 309 S.E.2d at 116.
The particular provision of the will relevant to the operation of the antilapse statute and determined to constitute a contrary intention negating the effect of the antilapse statute provided as follows: "'This is providing that all named are living at my death.'" Id. at 617, 309 S.E.2d at 117.
The testator's husband and her sister Mrs. Tomich predeceased her. Id.
The lower court held in Mrocko that Mrs. Wright, as the sole surviving sister, was the beneficiary under the will. The appellants contended on appeal that the antilapse statute entitled them to one-half of the residuary estate. Id. at 618, 309 S.E.2d at 117.
The Court affirmed the determination of the lower court, finding that the testator's provision, 'This is providing that all named are living at my death' applied to all of the named beneficiaries in the will. Id.
This was in essence a survivorship clause creating a "different disposition" negating the application of the antilapse statute. Because the bequest was not saved by the antilapse statute, the void gift statute was invoked, and the failed devise was added to the residuary estate which permitted Mrs. Wright to receive the entire estate under the residuary clause. Id. at 619, 309 S.E.2d at 118.
The testator in Mrocko included an express survivorship requirement in the provision devising to the beneficiaries "providing that all named are living at my death." Id. at 617, 309 S.E.2d at 117.