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IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA September 2000 Term

FILED
November 2, 2000
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

_____________ No. 27665 _____________

RELEASED
November 3, 2000
RORY L. PERRY II, CLERK SUPREME COURT OF APPEALS OF WEST VIRGINIA

STEPHEN KUBICZKY, Plaintiff Below, Appellant v. WESBANCO BANK WHEELING, as Executor of the Estate of Dick Harmath; ANNA HARMATH KOVACS; and HELEN HARMATH LAITOS, Defendants Below, Appellees

________________________________________________________________ Appeal from the Circuit Court of Ohio County Honorable Fred Risovich, II, Judge Case No. 99-C-328 FR REVERSED AND REMANDED WITH DIRECTIONS ________________________________________________________________ Submitted: September 6, 2000 Filed: November 2, 2000 Ronald M. Musser, Esquire Musser & McArdle Wheeling, West Virginia Attorney for Appellant Gail W. Kahle, Esquire Wheeling. West Virginia Attorney for Appellee Wesbanco

Paul C. Camilletti, Esquire Camilletti, Sacco & Pizzuti Wheeling, West Virginia Attorney for Appellees Kovacs and Laitos

JUSTICE SCOTT delivered the Opinion of the Court.

SYLLABUS BY THE COURT

1. "A circuit court's entry of a declaratory judgment is reviewed de novo." Syl. Pt. 3, Cox v. Amick, 195 W. Va. 608, 466 S.E.2d 459 (1995).

2. "W.Va.Code 41-3-3 [1923] provides that the heirs at law of a devisee or legatee who dies before the testator take such property as the joint devisee or legatee would have taken if he had survived the testator, unless a different disposition thereof be made or required by the will." Syl. Pt. 1, Mrocko v. Wright, 172 W. Va. 616, 309 S.E.2d 115 (1983).

3. "Where a will is made it is presumed that the testator intended to dispose of his whole estate, and such presumption should prevail unless the contrary shall plainly appear." Syl. Pt. 4, Rastle v. Gamsjager, 151 W. Va. 499, 153 S.E.2d 403 (1967).

4. "The law favors testacy over intestacy." Syl. Pt. 8, In re Estate of Teubert, 171 W. Va. 226, 298 S.E.2d 456 (1982).

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5. In providing for distribution of an estate, utilization of the phrase "to the express exclusion of any other person or persons," in the absence of clear and unequivocal expression of intent for an alternate distribution, is insufficient to negate the operation of the antilapse statute, West Virginia Code

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