In Re the Estate of Teubert

298 S.E.2d 456, 171 W. Va. 226, 37 A.L.R. 4th 515, 1982 W. Va. LEXIS 933
CourtWest Virginia Supreme Court
DecidedDecember 1, 1982
Docket15546
StatusPublished
Cited by28 cases

This text of 298 S.E.2d 456 (In Re the Estate of Teubert) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re the Estate of Teubert, 298 S.E.2d 456, 171 W. Va. 226, 37 A.L.R. 4th 515, 1982 W. Va. LEXIS 933 (W. Va. 1982).

Opinion

MILLER, Chief Justice:

This case involves the validity of a holographic writing made by C.J. Teubert. Two primary questions are presented: (1) whether certain typewritten words render the entire will invalid, and (2) whether the will demonstrates a testamentary intent and an understandable dispositionary plan. The trial court held the will valid and we affirm.

Mr. Teubert died a bachelor with no close relatives. He was shown to be an extremely frugal and shrewd postal employee. During his lifetime he had accumulated assets of approximately three million dollars. He enjoyed good health until February 11, 1979, when he was struck by an automobile, and he died three days later at the age of 91.

Upon Teubert’s death, the writing in question was found among his personal papers. [See Appendix A.] The writing was wholly in the deceased’s handwriting, with the exception of several typewritten lines located near the top and to the left of the page, which read, “(Revolking [sic] all writings or wills heretofore made by C.J. Teubert) All this for TRUST DEPT., First-Huntington Nat’l.Bk. Huntington,W.Va.” Above the typewritten portion was handwritten, “Last Will, Etc. 9/1/71,” and below the typewriting was the remaining handwritten portion which began “Pay just debts & funeral Ex.”

The writing devised certain real property to the Jehovah’s Witnesses, directions for the creation of the “James H. & Alice Teu-bert Foundation,” and directions to the Foundation as to disbursements. The writing was signed at the bottom by the deceased, and one portion relating to free rent for certain tenants of the deceased was lined off and marked out with X’s. *229 Beside the marked-out provision was written “Void” and the deceased’s signature.

The Cabell County Commission refused to probate the writing as the Last Will & Testament of the deceased, and also refused to probate a separate unsigned codicil. The proponents of the will appealed to the Circuit Court of Cabell County, and the court, sitting without a jury, held that the will was a valid holographic will, that the typewriting on the will was surplusage, and that the writing would be admitted to probate. The appellants, the heirs-at-law of C.J. Teubert, appealed.

I. The Validity of the Holographic Will

A. Wholly In The Handwriting

W.Va.Code, 41-1-3, 1 provides that holographic wills are valid in this State if they are wholly in the handwriting of the testator and signed. The third and final requirement for a valid holographic will in our jurisdiction is that the writing must evidence a testamentary intent. In Syllabus Points 4 and 5 of In Re: Estate of Briggs, 148 W.Va. 294, 134 S.E.2d 737 (1964), we elaborated on this third requirement as follows:

“4. In determining whether a writing in the form of a letter discloses an intent that it be operative as a holographic will, it is proper to consider whether the writing expresses merely an intent to make a will in the future; and also whether the language relied upon as being testamentary in character constitutes the principal portion, or an important portion of the letter, or whether, on the contrary, such language is merely casual in nature.
“5. If a writing in the form of a letter appears on its face to be ambiguous in respect to the question of the presence or absence of a testamentary intent, extrinsic evidence may be admitted in relation to that question.”

See also Rice v. Henderson, 140 W.Va. 284, 83 S.E.2d 762 (1954); Black v. Maxwell, 131 W.Va. 247, 46 S.E.2d 804 (1948).

The appellants initially argue that the typewritten lines operate to void the will for not being “wholly in the handwriting of the testator,” while the appellees assert the correctness of the lower court’s ruling that the typewritten lines are “surplusage” and do not affect the will. Under the surplusage theory, nonhandwritten material in a holographic will may be stricken with the remainder of the instrument being admitted to probate if the remaining provisions make sense standing alone. See 2 Bowe-Parker, Page on Wills § 20.5 at 288 (1960). This rule has been stated in In re Lowrance’s Will, 199 N.C. 782, 785, 155 S.E. 876, 878 (1930):

“When all the words appearing on a paper in the handwriting of the deceased person are sufficient ... to constitute a last will and testament, the mere fact that other words appear thereon, not in such handwriting, but not essential to the meaning of the words in such handwriting, cannot be held to defeat the intention of the deceased, otherwise clearly expressed, that such paperwriting is and shall be his last will and testament. ... The words in print appearing on the sheets of paper propounded in the instant case, are surplusage.”

See also Pounds v. Litaker, 235 N.C. 746, 747-48, 71 S.E.2d 39, 40 (1952); In Re Will of Parsons, 207 N.C. 584, 587, 178 S.E. 78, 80 (1935).

The Virginia Supreme Court has interpreted its holographic will statute, which also requires that such a will be “wholly in the handwriting of the testator,” and has determined that the law is satisfied if the handwritten part, without the nonhandwrit-ten part, is “complete and entire in itself.” Gooch v. Gooch, 134 Va. 21, 29, 113 S.E. 873, 876 (1922). See also Bell v. Timmins, *230 190 Va. 648, 58 S.E.2d 55 (1950); Moon v. Norvell, 184 Va. 842, 36 S.E.2d 632 (1946). The Virginia court declined to find that “wholly” was used in its “absolute, utter and rigidly uncompromising sense.” Bell v. Timmins, 190 W.Va. at 655, 58 S.E.2d at 59. In Bell, the court was confronted with a holographic will upon which a well-meaning friend of the testator had printed certain words to clarify the testator’s handwritten language. The court concluded that the testator’s language standing alone was sufficient to create a valid holographic will.

The surplusage rule has been adopted in a number of jurisdictions. E.g., In Re Estate of Schuh, 17 Ariz.App. 172, 496 P.2d 598 (1972); In Re Estate of Morrison, 55 Ariz. 504, 103 P.2d 669 (1940); Estate of Black, 30 Cal.3d 880, 641 P.2d 754, 181 Cal.Rptr. 222 (1982); In Re Estate of Durlewanger, 41 Cal.App.2d 750, 107 P.2d 477 (1940); Fairweather v. Nord, 388 S.W.2d 122 (Ky.1965); Heirs of McMichael v. Bankston, 24 La.Ann. 451 (1872); Baker v. Brown, 83 Miss. 793, 36 So. 539 (1903); In Re Bennett’s Estate,

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Bluebook (online)
298 S.E.2d 456, 171 W. Va. 226, 37 A.L.R. 4th 515, 1982 W. Va. LEXIS 933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-the-estate-of-teubert-wva-1982.