Fenton v. Davis

47 S.E.2d 372, 187 Va. 463, 1948 Va. LEXIS 236
CourtSupreme Court of Virginia
DecidedApril 26, 1948
DocketRecord No. 3315
StatusPublished
Cited by10 cases

This text of 47 S.E.2d 372 (Fenton v. Davis) 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
Fenton v. Davis, 47 S.E.2d 372, 187 Va. 463, 1948 Va. LEXIS 236 (Va. 1948).

Opinion

Hudgins, C. J.,

delivered the opinion of the court.

This writ of error is to an order probating the following paper writing as the holograph will of Cortelyou H. Warren.

“1-31-47
“To whom it may concern—
“Being of sound mind & body—
“I will.
“All of my personal property and insurance to my mother Corra Lee Warren 9016 Cottage Toll Road
“Norfolk Va.-
“Cortelyou H. Warren
“P. S.—Real estate & Government retirement-insurance I. B. E. W.”

Elmer E. Davis qualified as administrator c. t. a. of decedent’s estate.

Mrs. Norva Fenton, only child of decedent, contended in the lower court and contends here (1) that the alleged holograph will was not proved to be wholly in the handwriting of the decedent by “at least two disinterested witnesses;” (2) that the writing after the signature—“P. S.— Real estate & Government retirement—Insurance I. B. E. W.” —was not authenticated and should not have been admitted to probate as a part of the will; (3) that the oral statements of the decedent at the time the will was executed and given to his mother were improperly admitted in evidence.

[466]*466Eight 'witnesses testified as to the handwriting of decedent —five for proponents and three for contestant.

Contestant contends that three of the five witnesses, namely, Carra Lee Warren and J. H. Warren, parents of decedent, and J. Carlton Hudson, one of attorneys for proponents, were not disinterested witnesses within the meaning of the statute. It is unnecessary to decide or even discuss this question because the decision of the trial court is supported by the testimony of C. A. Weakley and Jack Dollar, two disinterested witnesses.

C. A. Weakley testified that he was an employee of the Southern Bank of Norfolk and that he was familiar with the handwriting of the testator. When first shown the alleged will he said it was similar but not well written according to the signature on file at his bank. He asked permission to leave the stand and make a further study and comparison of the writing with the acknowledged signature of testator in his possession. His testimony while he was on the stand the second time was neither positive nor convincing. He seemed undecided in his own mind whether or not the paper offered was in the handwriting of the testator; but after leaving the stand the second time he had access to different authenticated papers written by the testator, and, after studying them alone, he asked permission to go back on the witness stand and said:

“A. I have given it some more consideration and looked at it further, and I find his writing—it is his writing, only it was written in a different feeling. He was not feeling just right when he was writing it. In other words, He was— well, his spirits were low. In other words, he didn’t put full pressure on the paper.
“Q. Is that paper, the will, in the handwriting of Mr. Warren, or not?
“A. I would say yes.
“Q. You haven’t had any conversation with either of us since you got off the stand?
“A. No.”

Jack Dollar testified that he was an electrician and had [467]*467worked with testator for four or five years; that he had received a number of orders written by the testator; that he' was familiar with testator’s handwriting and that the paper writing offered for probate was in the handwriting of the testator. He first said that he could not make out the first word on the second line and he was not certain that it was in the handwriting of decedent. Later he was asked by the court:

“Q. Is it your opinion that the paper offered as a will is written entirely by Mr. Warren?
“A. I would say that it was, yes.”

In addition to the testimony of these two witnesses and the three alleged interested witnesses, the trial court compared duly authenticated documents written by decedent with the will. Hence, if we exclude from our consideration the entire testimony of the three alleged interested witnesses, there is ample evidence to sustain the decision of the trial court on the issue that the paper was wholly in the handwriting of the testator and that part which appears above the signature was a holograph will, executed as required by Code, section 5229.

Proponents contend that that part of the writing which appears after the signature of the testator is nothing more than a change, alteration, or interlineation of the instrument which appears above the signature, and therefore it should be considered an integral part of the original will.

In Triplett v. Triplett, 161 Va. 906, 172 S. E. 162, it was held that a holograph will containing erasures and interlineations in the handwriting of the testator made after it was signed and witnessed could not be probated as an attested will, but could be probated as a holograph will if the erasures and alterations were made in the writing of the testator and if his name remained * * in such manner as to manifest that it was intended as a signature. The will then becomes re-executed with all the changes as valid and subsisting parts" of the new will.”

The rule in Virginia is that “* * * the finality of testamentary intent must be ascertained from the face of [468]*468the paper, and extrinsic evidence is not admissible either to prove or disprove it.” Hamlet v. Hamlet, 183 Va. 453, 461, 32 S. E. (2d) 729.

The only logical conclusion to be drawn from interlineations and additions in a holograph will which are in the handwriting of the testator above the signature is that the testator intended for his original signature to be a re-execution of the will with interlineations and additions included. But when it appears from the face of the will that there is a testamentary disposition of all or part of testator’s estate appearing after the signature and nothing more, no logical inference of re-execution or re-authentication can be drawn.

The place of signature on a writing offered for probate as a will has been the subject of much judicial discussion. This discussion stemmed from the leading English case of Lemayne v. Stanley (1681), 3 Levintz 1, in which it was held that a name appearing at the top or beginning of the will was sufficient if other evidence on the face of the instrument indicated that the testator intended his name so written to be a signature. In that case the will was wholly in the handwriting of the testator. It was published and acknowledged in the presence of four subscribing witnesses in whose presence the seal of the testator was affixed, but no name written at the close. Some time after this decision was announced the English statute was changed to require the signature of a will to appear at the end or close of the completed document. The statutes in force in many States require both attested and holograph wills to be “signed at the end,” or “subscribed at the end.”1

The statute in Virginia does not designate the place of signature.

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Cite This Page — Counsel Stack

Bluebook (online)
47 S.E.2d 372, 187 Va. 463, 1948 Va. LEXIS 236, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fenton-v-davis-va-1948.