Bell v. Timmins

• Decision Date: 13 March 1950
• Citation: 58 S.E.2d 55,190 Va. 648
• Parties: CHRISTINA BELL v. MARY H. TIMMINS, ADMINISTRATRIX OF MARY HALIHAN GILROY, DECEASED, AND OTHERS
• Court: Virginia Supreme Court

Page 55

58 S.E.2d 55

190 Va. 648

CHRISTINA BELL v. MARY H. TIMMINS, ADMINISTRATRIX OF MARY HALIHAN GILROY, DECEASED, AND OTHERS.

Supreme Court of Appeals of Virginia

March 13, 1950.

Charles R. Moss, Wilbur G. Mitchell and George W. Reilly, for the petitioner.

PER CURIAM.

Appellant contends that the Chancellor committed reversible error in permitting an alleged holograph will of Mary Halihan Gilroy to be probated, because some of the words in the paper writing were conceded to have been written by another.

The will, with the words not written by the testatrix on separate lines and in parentheses, is as follows:

'I Mary Halihan Gilroy of Richmond Virginia do make Publish and declare this to be my last Will and testament and do hereby revoke all other Wills by me at any time heretofore made i (I) leave all (I possess in equal Shares) to John Gilroy in equal Shares to his (the) nieces and nephews (of my deceased husband, John Gilroy) who are living at the time of my death to Michal Gilroy a brothe 10 00 (ten) Dollars and a Sister Annie Kivlehan 10 00 (ten) Dollars (all are residents of) Drumcliffe Co (County) Sligo Ireland and ten Dollars 10.00 to Christina Bell

88 New st. Newark N.J. two hundred Dollars 200.00 to little Sisters Poor of Richmond

Mary Halihan Gilroy'

(Seal)

The learned Chancellor deleted the words which were not in the handwriting of the testatrix and the paper writing so deleted was probated.

The pertinent facts are so concisely stated in the opinion of the Chancellor, and his reasoning is so logical and convincing, that we have decided to refuse the appeal and to adopt and publish his opinion as the opinion of this Court, which is as follows:

'On June 2, 1949, a manuscript paper dated November 24, 1935, purporting to be a holograph will of Mary Halihan Gilroy was presented to the court on behalf of Patrick Gilroy, one of the chief beneficiaries, and offered for probate. At that time Christina Bell, a niece and sole next of kin and heir at law of Mary Halihan Gilroy, appeared in her proper person as well as by counsel, and made herself a party to the proceeding, entering her objection as contestant to the probate of the will.

'The proceeding from that point was, as to the parties thus before the court, an inter partes probate matter. The issue of devisavit vel non was informally framed at the bar, all questions of law and fact being submitted for determination by the court without a jury.

'The position of contestant was that certain of the writing on the paper was by another hand, -- that it was not a valid will for the reason that it was not wholly in the handwriting of Mary Halihan Gilroy. The paper is written with pencil on one side of a single sheet of paper. It is by no means easy upon casual inspection to determine whether all of it is by the same hand.

'Further hearing of the matter was fixed for June 29, 1949, it being arranged that in the meantime H. E. Cassidy, the well known and highly accomplished examiner of questioned documents, would make a study of the paper and give the court the benefit of his expert opinion in the form of testimony.

'On June 29, 1949, the evidence in the case on behalf of the proponent and on behalf of the contestant was heard. Mr. Cassidy appeared and testified, giving the results of his study in the form of a comprehensive written report, which by stipulation is taken and considered as his evidence in chief; it is filed marked 'Exhibit Cassidy 6/29/49.' It was clear from the testimony of Mr. Cassidy that certain words, punctuation marks, deletions and other changes in the paper were not in Mary Halihan Gilroy's handwriting. It was equally clear that there was no attempt at concealment or forgery, and Mr. Cassidy voiced a well grounded suspicion that some friend, with good intentions but quite unfamiliar with legal affairs, had at some time after the document was written by Mrs. Gilroy undertaken to polish and improve it. At this juncture all participating in the trial became interested in who this well wishing friend might be. Mr. Cassidy ventured a guess that it was probably one Agnes O'Brien, and counsel for the proponent said that a like suspicion had occurred to him while Mr. Cassidy was testifying, adding that to the best of his knowledge Miss O'Brien was in Florida. My one of those strange accidents it was discovered that Miss O'Brien had, either purposely or by chance, come to Richmond and was in the City at that time. A forthwith witness subpoena was issued and she was brought to the witness stand. Her testimony was taken and reduced to writing by a court reporter.

'Miss O'Brien said that she was a close friend of Mary Halihan Gilroy, perhaps the closest friend she had; that about three years ago the matter of Mrs. Gilroy's making a will came up and she expressed a desire for assistance, -- and this Miss O'Brien cheerfully offered. Mrs. Gilroy came to see Miss O'Brien on this business, bringing with her in a paper bag the paper dated November 24, 1935, and other papers, and in Mrs. Gilroy's presence and with her consent Miss O'Brien undertook to make certain alterations and deletions on the paper for the purpose, and only for the purpose, of clarifying it as respects punctuation, grammar and phraseology. It was Mrs. Gilroy's fixed intention to make a will to this same purport; but not being herself a ready writer she wanted Miss O'Brien to help her as to form. She was insistent, however, that she herself wished to make the will and not have it made for her. Then and there Miss O'Brien took a pencil and made the numerous alterations which are meticulously enumerated in Mr. Cassidy's report, pages 6 and 7.

'I do not deem it necessary for me to discuss in detail these changes. They become glaringly apparent upon the inspection of the paper itself with Cassidy's report in hand. It is an important point in this case, -- that none of these changes, nor all of them put together, make, or were intended to make, the slightest change in the meaning of the document. They were simply, in the view of Miss O'Brien, 'improvements and clarifications' in capitalization, punctuation and phraseology.

'Miss O'Brien went on to testify that Mrs. Gilroy then left with the purpose of making a copy of what Miss O'Brien had framed for her, to be wholly in Mrs. Gilroy's handwriting and signed by her. Miss O'Brien further testified that shortly thereafter, a matter of a week or so, Mrs. Gilroy came back and exhibited to her another and new will wholly written by her, dated and signed, which will at the outset contained a general clause of revocation and then made the identical disposition of her property, there being, however, inserted some of the given names, but not the surnames, of the nieces and nephews to whom the bulk of the property was given. Miss O'Brien added that Mrs. Gilroy had not seen fit to include certain charitable gifts Miss O'Brien had suggested.

'What the court is to do with the testimony of Miss O'Brien and how far it is to be accepted in these proceedings will be a matter of later comment. It is interesting to note at this point that the case does not depend on witnesses to handwriting, lay or expert. The document examiner with his careful study and experience was able to render, by a fortuitous set of circumstances, a greater service than experts are usually able to render. He was not only able to give his opinion as to precisely what words, letters, lines and punctuation marks were in a different hand, but through him the court was able to find the hand that actually wrote those characters. As the case has thus developed it does not depend upon opinion evidence but upon the application of law to known facts. Mary Halihan Gilroy had for eleven years a holograph will that was undoubtedly valid; it was quite good and clear until improved and embellished by her perfectionist friend. The question is how to apply correct principles of law to this almost unique set of facts.

'In order now to connect up I should state that Mrs. Gilroy was when she was over sixty years of age left the childless widow of John Gilroy. Her husband died in January, 1934, nearly two years before the date of the will in question. He had caused an elaborate will to be prepared by a lawyer but it had never been executed, and he died intestate. His widow, Mary Halihan Gilroy, would have received his entire estate as his sole distributee, but it so happened that all that they had, an estate of some $18,000.00, was in the form of joint bank accounts passing to the survivor, and bonds similarly registered, so that it was in her capacity as survivor that she came into all the property. She wrote the paper in question nearly two years after his death, -- and then for eleven years she had a perfectly good holograph will, carrying out in general his wishes as expressed in his unexecuted will. The exact phraseology of this good holograph will is set out in the middle of page 5 of the Cassidy report. Then, some three years ago, Mrs. Gilroy had the misfortune to consult a well intentioned but misguided friend.

'I should further state that after Mrs. Gilroy's death a thorough search of her effects was made. In the lock box at the bank nothing was found but currency, but in a manila envelope in her trunk in her room the paper dated November 24, 1935, was found, folded, -- I should say, laid on top of and folded with a letter from Joseph M. Hurt, Jr., dated February 19, 1934, and then these two papers placed within the folds of the typewritten document in the legal back of Joseph M. Hurt, Jr., Attorney, that was the unexecuted will of John Gilroy.

'After the suggestion by Miss O'Brien that there was a later will a second, and even more thorough, search of the effects of Mrs. Gilroy was made, but no other testamentary paper of any kind was found.

] "The statute requires that, unless properly witnessed, a will must be wholly in the handwriting of the testator and...