WVC 36 -
CHAPTER 36. ESTATES AND PROPERTY.
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ARTICLE 1. CREATION OF ESTATES GENERALLY.
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§36-1-1. Creation of estates; necessity of deed or will.
No estate of inheritance or freehold, or for a term of more
than five years, in lands, or any other interest or term therein of
any duration under which the whole or any part of the corpus of the
estate may be taken, destroyed, or consumed, except for domestic
use, shall be created or conveyed unless by deed or will.
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§36-1-2. Power of attorney to execute deed of land; necessity of
No power of attorney to execute a deed of land for another
person shall be valid, unless it be in writing signed by the person
on whose behalf such deed is to be made.
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§36-1-3. Contracts for sale or lease of land; necessity of
No contract for the sale of land, or the lease thereof for
more than one year, shall be enforceable unless the contract or
some note or memorandum thereof be in writing and signed by the
party to be charged thereby, or by his agent. But the
consideration need not be set forth or expressed in the writing,
and it may be proved by other evidence.
WVC 36 - 1 - 4
Acts, 2011 Reg. Sess., Ch. 66.
§36-1-4a. Memorandum of trust; requirements; recordation.
(a) A memorandum of trust that satisfies both of the following
requirements may be presented for recordation in the office of the
clerk of the county commission of any county in which real property
that is subject to the trust is located:
(1) The memorandum shall be executed by the currently acting
trustee or trustees of the trust, and, if living, by the settlor or
settlors, personally, or by a duly appointed attorney-in-fact or
conservator of the settlor or settlors, and shall be acknowledged
in the manner a deed must be acknowledged in order to be recorded.
(2) The memorandum shall contain at least the following
information with respect to the trust:
(i) The existence of the trust and the date of the trust;
(ii) The names and mailing addresses of the settlor or
settlors and of the currently acting trustee or trustees of the
trust, the names and mailing addresses of any successor trustee or
trustees, and the circumstances under which any successor trustee
or trustees will assume trust powers;
(iii) The revocability or irrevocability of the trust; and
(iv) A verbatim recitation of the trust powers specified in
the trust relative to the acquisition, sale, disposition, or
encumbering of real property by the trustee or trustees or the
conveyance or disposition of real property by the trustee or
trustees and any restrictions upon those powers, or a statement
that the trust powers include at least all those trust powers contained in section three, article five-a, chapter forty-four of
this code as they existed at the date of the execution of the
(b) A memorandum of trust may also set forth the substance or
actual text of any or all of the provisions of the trust.
(c) A memorandum of trust that satisfies the provisions of
this section constitutes notice only of the information contained
(d) Upon the presentation of a memorandum of trust that
satisfies the provisions of this section and the payment of the
requisite fee, the clerk shall record the memorandum of trust with
the records of deeds and list it in the grantor index under the
name of the settlor or settlors and in the grantee index under the
names of the then-acting trustee or trustees.
(e) Nothing herein shall be construed or deemed to require
recordation of any original trust agreement or other governing
instrument which establishes the trust identified in the memorandum
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§36-1-5. Gifts of personal property.
No gift of any goods or chattels shall be valid unless made
by writing, signed by the donor or his agent, or by will, or
unless actual possession shall have come to and remained with the
donee or some person holding for or under him. If the donor and
donee reside together at the time of the gift, possession at the
place of their residence shall not be a sufficient possession
within the meaning of this section. The requirements of this
section shall not apply to the wife's paraphernalia. No seal
shall be necessary to give validity to a gift of goods or
chattels by writing, as hereinbefore provided.
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Acts, 2011 Reg. Sess., Ch. 66.
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§36-1-7. Rights of persons not parties to instrument.
An immediate estate or interest in, or the benefit of a
condition respecting any estate in, property may be taken by a
person under an instrument, although he be not a party thereto.
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§36-1-8. Conveyance by attorney in fact.
If, in a deed of land, or a conveyance by writing of
personal property, made by one as attorney in fact for another,
the words of conveyance or the signature be in the name of the
attorney, it shall be as much the principal's deed or conveyance
as if the words of conveyance or the signature were in the name
of the principal by the attorney, if it be manifest on the face
of the instrument that it should be construed to be that of the
principal to give effect to its intent.
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§36-1-9. Conveyance of various interests and future estates in
land or personal property.
Any interest in or claim to real estate or personal property
may be lawfully conveyed or devised. Any estate in such property
may be made to commence in futuro, by conveyance inter vivos, in
like manner as by will, and any estate which would be good as an
executory devise or bequest, shall be good if created by
conveyance inter vivos.
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§36-1-10. Operation of conveyance in excess of actual interest.
A deed which purports to convey a greater right or interest
in real property than the person making it may lawfully convey
shall operate as an alienation of such right or interest in such
real property as such person might lawfully convey. The
application of the doctrine of estoppel by deed, and the
liability of the grantor, his heirs and personal representatives
upon the covenants, if any, contained in such conveyance shall be
determined according to the rules of law applicable to other
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§36-1-11. Fee simple may be created without words of limitation.
When any real property is conveyed or devised to any person,
and no words of limitation are used in the conveyance or devise,
such conveyance or devise shall be construed to pass the fee
simple, or the whole estate or interest, legal or equitable,
which the testator or grantor had power to dispose of, in such
real property, unless a contrary intention shall appear in the
conveyance or will.
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§36-1-12. Estates tail.
Every estate in lands so limited that, as the law was on the
seventh day of October, in the year seventeen hundred and seventy- six, in the state of Virginia, such estate would have been an
estate tail, shall, except as provided in section fourteen of
this article, be deemed an estate in fee simple, and every
limitation upon such an estate shall be held valid, if the same
would be valid when limited upon an estate in fee simple.
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§36-1-13. Limitations contingent upon death.
Every limitation in any conveyance or will disposing of real
or personal property, contingent upon the dying of any person
without heirs, or heirs of the body, or issue of the body, or
children, or offspring, or descendant, or other relative shall be
construed as a limitation, to take effect when such person shall
die, not having such heir, or issue, or child, or offspring, or
descendant, or other relative, as the case may be, living at the
time of his death, or en ventre sa mere at the time of his death
and born alive thereafter, unless the intention of such
limitation be otherwise plainly declared on the face of the
conveyance or will creating it.
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§36-1-14. Rule in Shelley's Case abolished.
Wherever any person, by conveyance inter vivos or by will,
takes an estate of freehold in land, or takes such an estate in
personal property as would be an estate of freehold, if it were
an estate in land, and in the same conveyance or will an estate
is afterward limited by way of remainder, either mediately or
immediately to his heirs, or the heirs of his body, or his issue,
the words "heirs,""heirs of the body," or "issue" or other words
of like import used in the conveyance or will, in the limitation
therein by way of remainder, shall not be construed as words of
limitation carrying to such person the inheritance as to the
land, or the absolute estate as to the personal property, but
they shall be construed as words of purchase, creating a
remainder in the heirs, heirs of the body, or issue; it being the
intent and purpose of this section to completely abolish the rule
of law known as the rule in Shelley's Case.
WVC 36 - 1 - 14 A
§36-1-14a. Doctrine of worthier title and rule that grantor
cannot create a limitation in his own heirs or next
of kin abolished.
Wherever a person, by conveyance inter vivos or by will,
purports to create any present or future interest in real or
personal property in a class of persons described as his own heirs,
next of kin, distributees, or by other words of like import, such
heirs, next of kin or other described persons shall take, by
purchase and not by descent or distribution, the interest so
purported to be created; it being the intent and purpose of this
section to completely abolish the rule of law known as the doctrine
of worthier title and the rule of law that a grantor cannot create
a limitation in favor of his own heirs or next of kin. This
section shall only apply to instruments which become effective
after the effective date of this section.
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§36-1-15. Contingent remainder; validity; indestructibility.
A contingent remainder shall in no case fail for want of a
particular estate to support it, nor because of the termination
of a preceding particular estate by merger, forfeiture, or in any
other manner, before the contingent remainder shall have been
vested. It is the intent and purpose of this section to abolish
the common-law doctrine of the destructibility of contingent
WVC 36 - 1 - 16
§36-1-16. Interest in property coupled with power of disposal.
If any interest in or claim to real or personal property be
given by sale or gift inter vivos or by will to one, with a
limitation over either by way of remainder or of executory devise
or any other limitation, and by the same conveyance or will there
be conferred, expressly or by implication, a power upon the first
taker in his lifetime or by will to use or dispose absolutely of
such property, the limitation over shall not fail or be defeated
except to the extent that the first taker shall have lawfully
exercised such power of disposal. The proceeds of a disposal
under such power shall be held subject to the same limitations
and the same power of use or disposal as the original property,
unless a contrary intent shall appear from the conveyance or
will: Provided, however,
That a trust deed or mortgage executed
by such first taker shall not be construed to be an absolute
disposal of the estate thereby conveyed unless there be a sale
thereunder, but shall be effective only to the extent of the lien
or encumbrance created by such trust deed or mortgage.
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Acts, 2011 Reg. Sess., Ch. 66.
WVC 36 - 1 - 18
Acts, 2011 Reg. Sess., Ch. 66.
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§36-1-19. Joint tenancy; tenancy by entireties; survivorship.
When any joint tenant or tenant by the entireties of an
interest in real or personal property, whether such interest be a
present interest, or by way of reversion or remainder or other
future interest, shall die, his share shall descend or be
disposed of as if he had been a tenant in common.
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§36-1-20. When survivorship preserved.
(a) The preceding section shall not apply to any estate which
joint tenants have as executors or trustees, nor to an estate
conveyed or devised to persons in their own right, when it
manifestly appears from the tenor of the instrument that it was
intended that the part of the one dying should then belong to the
others. Neither shall it affect the mode of proceeding on any
joint judgment or decree in favor of, or on any contract with, two
or more, one of whom dies.
(b) When the instrument of conveyance or ownership in any
estate, whether real estate or tangible or intangible personal
property, links multiple owners together with the disjunctive "or,"
such ownership shall be held as joint tenants with the right of
survivorship, unless expressly stated otherwise.
(c) No person convicted of violating the provisions of section
one or three, article two, chapter sixty-one of this code as a
principal, aider and abettor or accessory before the fact, or
convicted of a similar provision of law of another state or the
United States, may take or acquire any real or personal property by
survivorship pursuant to this section when the victim of the
criminal offense was a joint holder of title to the property. The
property to which the person so convicted would otherwise have been
entitled shall go to the person or persons who would have taken the same if the person so convicted had predeceased the victim.
WVC 36 - 1 - 20 A
§36-1-20a. Elimination of need for straw party in creating joint
tenancy with right of survivorship.
Any conveyance or transfer of property, or any interest
therein, creating a joint tenancy with right of survivorship
together with the person or persons conveying or transferring such
property, executed by such person or persons to or in favor of
another shall be valid to the same extent as a similar transfer or
conveyance from a third party or by a straw party deed.
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§36-1-21. Alien may own land.
Any alien may take by devise, inheritance, gift or purchase,
and hold, convey, devise or otherwise dispose of land within this
state as if he were a citizen, and if an alien owner of land
within this state shall die, his land shall descend in the same
manner as if he were a citizen.
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Acts, 1963 Reg. Sess., Ch. 94.
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§36-1-23. Exemption of certain employee trusts from rule against
perpetuities or restraints on alienation.
Pension, profit sharing, stock bonus, annuity or other
employee trusts heretofore or hereafter established by employers
for the purpose of distributing the income and principal thereof to
some or all of their employees, or the beneficiaries of such
employees, shall not be invalid as violating any laws or rules
against perpetuities or restraints on the power of alienation of
title to property; but such trusts may continue for such period of
time as may be required by the provisions thereof to accomplish the
purposes for which they are established.
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§36-1-24. Options in leases not affected by rule against
An option contained in any lease to purchase the whole or
any part of the leased premises, exercisable either during the
term of the lease or immediately upon its termination, shall, if
otherwise valid, be enforceable in accordance with its terms,
irrespective of the rule against perpetuities. In any suit to
enforce such option, the lessor, or the successors in interest of
the lessor, shall not plead the rule against perpetuities as a
defense, and the same shall not constitute a defense either in
law or in equity: Provided,
That this section shall not apply to
any lease heretofore executed.
Note: WV Code updated with legislation passed through the 2016 Regular Session
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