Etgen v. Corboy

337 S.E.2d 286, 230 Va. 413, 1985 Va. LEXIS 295
CourtSupreme Court of Virginia
DecidedNovember 27, 1985
DocketRecord No. 821605
StatusPublished
Cited by2 cases

This text of 337 S.E.2d 286 (Etgen v. Corboy) is published on Counsel Stack Legal Research, covering Supreme Court of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Etgen v. Corboy, 337 S.E.2d 286, 230 Va. 413, 1985 Va. LEXIS 295 (Va. 1985).

Opinion

THOMAS, J.,

delivered the opinion of the Court.

This appeal raises two issues of first impression in the Commonwealth: (1) whether the applicable statute permits partial revocation of a formally attested will by marks placed upon it by the testator with intent to partially revoke the will, and (2) whether the presumption that a testator marked on his will with intent to revoke portions of it can arise where two duplicate originals were in the possession of the testator from their execution until found after his death and one is marked while the other is not. The trial court ruled in the affirmative on each issue deciding, in effect, that the testator successfully “cut” Carolyn Etgen out of his will. Etgen appeals.

The facts were stipulated. Frank I. Whitten, Jr., the testator, died on March 2, 1978. In oral argument, all counsel represented that he died by his own hand. On September 6, 1977, the date his will was executed, Whitten was cohabiting, in his home, with Etgen. However, a short time prior to Whitten’s death, Etgen moved out and the relationship between the two was severed.

The will propounded by the administrator c.t.a. of the marked will, J. Grant Corboy, was found among the personal effects of Whitten at his home. According to the stipulation, the marked will “was in the custody of the testator, Frank I. Whitten, Jr., [415]*415after its execution until it was found among his personal effects after his death.”

When the marked will was found, two paragraphs concerning Carolyn Etgen were marked through in pencil though the paragraphs remained legible. All of the sixth paragraph and much of the thirteenth paragraph were so marked. The sixth paragraph originally provided as follows:

Sixth. I give the entire balance of my estate, both real and personal, to my friend Carolyn Elizabeth Etgen, who shares my household here on rural route 1 out of Narrows, Virginia. If she predeceases me, or is engaged or married to another man as of the date of my death, I assign my property as follows in sections seventh through twelfth.

This paragraph was marked through in its entirety with diagonal marks. The thirteenth paragraph originally provided as follows:

Thirteenth. I hereby appoint my friend Carolyn Elizabeth Etgen executrix of this my last Will and Testament. If she predeceases me, or is engaged or married to another man as of the date of my death, I appoint her brother, Michael W. Etgen, of Shawsville, Virginia, as executor of my Last Will and Testament.

(Emphasis added.) Everything was marked through with horizontal lines except the language emphasized. Further, “executrix” was changed to “executor.” In addition to the changes in paragraphs 6 and 13, all paragraphs after the fifth paragraph were renumbered. However, there were omissions in the numbering sequence. For example, the renumbered paragraphs skip from ten to thirteen. It was stipulated that at the time the marked will was discovered, no other will was found.

On August 30, 1978, the marked will was admitted to probate by the Clerk. In the probate order, the court noted that the subscribing witness called to prove the will testified that “no pencil interlineations were present on the paper writing when he and the other subscribing witness, witnessed the testator’s signature.”

Because of the marks on the will, the administrator c.t.a. sought instructions from the court regarding the distribution of the proceeds of the estate. As indicated above, the case was submitted to the court on stipulations. All counsel agreed that the issue was the [416]*416legal effect of the interlineations and deletions found on the marked will, “with regard to whether the testator effected a partial revocation or total revocation of his Will or whether the interlineations were of no effect.” In a letter opinion dated November 4, 1981, the trial court ruled that Whitten had effected a partial revocation which, in essence, eliminated Etgen as a beneficiary.

Thereafter, in January 1982, a safe deposit box belonging to Whitten was discovered. Since no key was found for the deposit box, it was drilled open. Inside was a duplicate original of the marked will. This version of the will was identical to the marked will except it bore no markings.

Upon discovery of the unmarked will, Etgen’s counsel requested and received a hearing on the effect of the newly discovered writing upon the trial court’s earlier ruling of partial revocation. The hearing on the unmarked will was held on July 7, 1982. No evidence was presented except the unmarked will.

In an order dated September 7, 1982, the trial court confirmed its earlier ruling. The court said that the discovery of the unmarked copy of the will had no effect on the previous ruling. The court ruled that Code § 64.1-58 permits partial revocation of an attested will by cancellation and that Whitten “intended to and did effect a partial revocation of his will which eliminated Ms. Etgen as a beneficiary.”

On appeal, Etgen attacks the trial court’s order on two grounds. First, she argues that the statute and the cases do not permit partial revocation of an attested will without further formalities. Second, she contends that the evidence was insufficient to establish a partial revocation.

To resolve the first issue, we must analyze the applicable statute, for it is a question of statutory law whether partial revocation of an attested will can be accomplished in the Commonwealth without further formalities. At the time the marked will was probated, Code § 64.1-58 provided, in pertinent part, as follows:

No will or codicil, or any part thereof, shall be revoked, unless by a subsequent will or codicil, or by some writing declaring an intention to revoke the same, executed in the manner in which a will is required to be executed, or by the testator, or some person in his presence and by his direction, cutting, tearing, burning, obliterating, canceling, or destroy[417]*417ing the same, or the signature thereto, with the intent to revoke.

(Emphasis added.) The words emphasized above clearly indicate that the legislature intended to permit partial revocation of an attested will. In Annot., 62 A.L.R. 1367, 1392-93 (1929), the authors discuss partial revocation of attested wills and write as follows:

[T]he matter of the revocation of a will in toto or pro tanto is statutory, depending largely upon the language of the statute. ... If the prohibitory provision only designates “wills,” ... a pro tanto revocation is not authorized. On the other hand, if this provision designates, in effect, “wills or any portion or clause thereof,” a revocation pro tanto is authorized, providing the act of the testator is one of the methods designated by the statute to revoke a will, or part thereof.

Our statute, as it then existed, was of the kind that permits partial revocation.1

Etgen cites two Virginia cases which, according to her, make clear that this Court has interpreted Code § 64.1-58 and its predecessors as not allowing partial revocation of attested wills without further formalities. Yet, those cases are distinguishable.

Etgen relies on Triplett’s Ex’or v. Triplett, 161 Va. 906, 172 S.E.

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Related

Goriczynski v. Poston
448 S.E.2d 423 (Supreme Court of Virginia, 1994)
In re Estate of Taggert
29 Va. Cir. 445 (Fairfax County Circuit Court, 1992)

Cite This Page — Counsel Stack

Bluebook (online)
337 S.E.2d 286, 230 Va. 413, 1985 Va. LEXIS 295, Counsel Stack Legal Research, https://law.counselstack.com/opinion/etgen-v-corboy-va-1985.