Baptist Home for Aged Women v. Mizell

• Citation: 89 S.E.2d 332,197 Va. 399
• Decision Date: 10 October 1955
• Docket Number: No. 4404,4404
• Court: Supreme Court of Virginia
• Parties: THE BAPTIST HOME FOR AGED WOMEN v. JOE T. MIZELL, JR., ADMINISTRATOR ETC., ET AL. Record

Page 332

89 S.E.2d 332

197 Va. 399

THE BAPTIST HOME FOR AGED WOMEN v. JOE T. MIZELL, JR., ADMINISTRATOR ETC., ET AL.

Record No. 4404.

Supreme Court of Appeals of Virginia

October 10, 1955.

Hunton, Williams, Gay, Moore & Powell; Ralph H. Ferrell, Jr. and E. Milton Farley, III, for the appellant.

Robert B. Gayle and George E. Allen, for the appellees.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

Mrs. Lee Jeter Robertson, of Richmond, died May 5, 1951, leaving two writings in pencil by her own hand on two separate sheets of paper, both dated July 15, 1942, which together were probated as her last will and testament, and, with spelling and punctuation as used by her, were as follows:

'I Lee Jeter Robertson being of sound disposing mind and memory do this day July fifteenth nineteen hundred and forty two (1942) make this my last will and testment.

'I bequeath to

Reversed and remanded.

1st Baptist Church $300.00 dollars. All my possessions of any falaue such as my dimonds, watch, house hold goods, must be sold to highest bidder. If there is any special article that either invidual would want, why it will be their privilege to have it. All my clothes will be disposed of by Mamie Jeter my sister

'Mr. Rucker & Richardson will sell my home. All bills must be paid promptly. Also notify Veteran's Administration immideately. Should there be any money left its to go to The Baptist Home for ladies. Garnett Brooks my very dear nephew can select any thing I have in the house Also Norma Dodson my niece or Maude & Ruth, my nieces

Mrs. Leon Robertson'

'My special request.

'In case of death at any time I want all my personal belongings to be sold to highest bidder Including my diamond rings, brass clock, Andirons Sconces Automobile flower pedestal, etc. My sister Mamie Jeter will dispose of all my clothes and take out any thing she so desires.

'Am making this request because I do not want to hurt any one of my family by specializing any particular article

Mrs. Leon Robertson'

This suit was brought by the administrator c.t.a. to have the will construed and for directions as to its execution. Answers were filed, depositions were taken and stipulations made as to certain facts. The issue raised and litigated was whether the will bequeathed to the appellant, Baptist Home for Aged Women (called in the will the Baptist Home for ladies), the proceeds from the sale of the home of the testatrix. The chancellor held, upon reasoning set forth in a written opinion, that it did not, but that the testatrix died intestate as to that fund and that it passed to her next of kin. The appellant assigns error to that ruling.

The effort in construing a will is to determine what the testator meant by what he said in the will. The object is to find the expressed intention of the testator. Chavis v. Myrick, 190 Va. 875, 878, 58 S.E. (2d) 881, 883; Conrad v. Conrad's Ex'r, 123 Va. 711, 716, 97 S.E. 336, 338. Where there is legitimate dispute as to meaning, the facts and circumstances existing when the will was made may be looked to in order to ascertain the meaning of the words as used by the testator. Coffman's Adm'r v. Coffman, 131 Va. 456, 462-3, 109 S.E. 454, 457; Smith v. Baptist Orphanage, 194 Va. 901, 903-4, 75 S.E. (2d) 491, 493.

Mrs. Robertson was about seventy-three years old when she died, and a childless widow. She married in the early thirties when she was around fifty and her husband died in 1936. The home here involved had been conveyed to them jointly in 1933 and his half interest passed to her by his will. She lived there until her death, alone except for occasional visits from relatives, and during World War II she rented two of the rooms in the house. She also received a small pension by reason of her husband's service in the first World War. These items along with a small amount of interest from loans and savings constituted her income.

Her home was the major part of her estate. It was sold in September, 1951, after her death, for $17,750. In 1942 when she wrote the will it would probably have brought substantially less. At the date of the will she had $775.12 in bank on savings account. The home, the cash in bank, two diamond rings which were sold for $500 in 1952, and household furniture of small value composed the bulk of her estate at that time. The savings account fluctuated widely, with frequent deposits and withdrawals. In December, 1939, it was down to $31.10. In February, 1946, it was $109.33. It increased after that date and the balance was $3,371.12 when she died. Her gross personal estate at her death amounted to $5,315.15. Her debts, including taxes and expenses of her last illness, were about $1,200; and the expenses of her funeral, which she herself arranged for in detail before she went to the hospital the last time, were $1,195.04.

The testatrix, as stated, had no children. She left to survive her as her heirs at law four sisters and one brother, the oldest of whom was eighty-nine and the youngest seventy; six children of a deceased sister, the oldest of whom was sixty-eight and the youngest fifty-eight; and three children of a deceased brother, the oldest being sixty and the youngest fifty-four. Of the nieces and nephew named in the will, Maude and Ruth were heirs; Garnett Brooks and Norma Dodson were not, being children of a living sister. The testatrix was on friendly terms with all the members of her family. She spoke of different ones but mentioned chiefly Garnett Brooks and two sisters, one being Mrs. Jeter, named in the will, who had been sick and whom the testatrix had helped financially.

The closest friend and almost daily companion of the testatrix after her husband's death was her near neighbor, Mrs. Duke, in whose home testatrix stayed for two weeks after one of her operations. She told Mrs. Duke that her family was well taken care of.

Mrs. Robertson knew she had cancer. She had five operations, three of which were performed before she was married. The present will was written about the time she was going to the hospital for another operation. Prior to that, so Mrs. Duke testified, she had made a will in which she mentioned the Baptist Home and also a sister, but she destroyed that will when she came back from the hospital. She was a member of the First Baptist Church in Richmond and was interested in the Baptist Home. She went to the Home on one occasion and inquired about getting in, stating that she wanted to give some money to the Home. She thought she had to live in the Home to make it a gift. When told otherwise she said, 'Oh, then I can make my will and give something?' She told Mrs. Duke of having visited the Home, and at a time not specified also told Mrs. Duke that she was going to the Baptist Home to live and would naturally leave them what she had. At a time also not shown she made plans to sell her home because the upkeep was too high. To another witness she said she wanted to do something for the family and for the Baptist Home. Such declarations of intention are not properly receivable in...