Black v. Maxwell
| Decision Date | 16 March 1948 |
| Docket Number | 9945. |
| Citation | 46 S.E.2d 804,131 W.Va. 247 |
| Parties | BLACK et al. v. MAXWELL et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. Testamentary intent and a written instrument, executed in the manner provided by Section 3, Article 1, Chapter 41, Code 1931, existing concurrently, are essential to the creation of a valid will.
2. The writing of his name by the maker of a holographic instrument in its first line is an equivocal act and, unless it affirmatively appears from the face of the instrument that the writing of his name at that place is intended as his signature, does not satisfy the statutory requirement that a valid will must be signed by the testator or by some other persons in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature.
3. A holographic instrument, pasted upon the bottom of a sheet of paper containing an earlier will and a codicil of the writer of the instrument which are wholly in his handwriting and signed by him at the end, which holographic instrument contains the name of the writer only in the first line of an initial paragraph couched in this language: 'I F. P Maxwell of Buckhannon Upshur Co West Va being of sound disposing mind hereby by make publish and declare this to be my last will & testament, hereby revoke all wills by me at any time heretofore maid', and which then provides for the disposition of all the property of the writer and, not being signed at the end, concludes with this provision 'S. R. Harrison Exec & Jr Young Attorney This 11 Feb 1946', is not signed by the writer in such manner as to make it manifest that his name is intended as his signature, does not satisfy the statutory requirement in that respect, and is not a valid will.
Wm. T. O'Brien, of Buckhannon, and Herbert M. Blair, of Weston, for appellants.
U. G. Young, Jr., of Buckhannon, and Arnold, Crawford & Hyer and D. H. Hill Arnold, all of Elkins, for appellees.
This appeal presents the question of the validity, as a holographic will, of a document wholly in the handwriting of Frank P. Maxwell, a well to do resident of Upshur County, who departed this life on February 14, 1946. The written instrument in question bears date the 11th day of February, 1946, and is attached to and pasted on a single sheet of paper upon which appear, also in the handwriting of the decedent, writings designated as his last will and testament dated September 8, 1944, and as a codicil to that will, dated February 9, 1946. Each of these two instruments concludes with the signature of the writer, F. P. Maxwell. The position of the instrument dated February 11, 1946, which bears no signature at the end, is at the bottom of the paper to which it is pasted so that the other two signed writings are above it on the single sheet upon which the three instruments appear.
The three writings were presented to the Clerk of the County Court of Upshur County for probate on February 21, 1946. Two of them, the writing dated September 8, 1944, and the writing dated February 9, 1946, each of which bears the signature of F. P. Maxwell at the end, were probated and admitted to record as the last will and testament of Frank P. Maxwell and the codicil to his last will and testament. The instrument dated February 11, 1946, and not signed at the end, was not probated but instead was filed as an extraneous or foreign paper. S. R. Harrison, Jr., named as executor in the codicil and in the instrument dated February 11, 1946, was appointed and qualified as executor of the instrument probated as the will. This action of the clerk was approved and confirmed by the County Court of Upshur County, by order entered by it on March 4, 1946.
On July 19, 1946, Carrie V. Maxwell, Harriet M. Jarvis and Emma F. Latham, three of the sisters and heirs at law of Frank P. Maxwell, who by inheritance would be entitled to share in the estate if the instrument dated February 11, 1946, is of no force or effect as a will, instituted in the Circuit Court of Upshur County against Blanche M. Harrison, also a sister and heir at law of the decedent, and numerous other persons interested in his estate, including the plaintiff in this suit, a suit in equity to partition the real estate of the decedent and for the appointment of a receiver to manage and preserve the real estate during the pendency of that proceeding.
On September 7, 1946, the original plaintiff in this suit, Columbia M. Black, a niece and an heir at law of Frank P. Maxwell, and also one of the main beneficiaries named in the written instrument of February 11, 1946, if it should be held to be his last will and testament, instituted this suit in equity against Carrie V. Maxwell and the other heirs at law of Frank P. Maxwell, S. R. Harrison, Jr., executor of the will and the codicil probated February 21, 1946, the other persons named as beneficiaries in the writing dated February 11, 1946, and the County Court of Upshur County and its members and its clerk, as defendants. The original bill of complaint, filed in open court on September 9, 1946, complained of the action of the county court and its clerk in probating the instruments dated September 8, 1944, and February 9, 1946, as the will of Frank P. Maxwell and in refusing to probate the instrument dated February 11, 1946, as his will. As part of the relief prayed for, it sought to have an issue devastavit vel non to determine whether the instruments admitted to probate constituted the complete last will and testament of Frank P. Maxwell, to set aside the probate of the foregoing two instruments, to have the three instruments dated September 8, 1944, February 9, 1946, and February 11, 1946, declared to be his true last will and testament and to require them to be probated as such, to enjoin the prosecution of the partition suit pending the determination of the issues presented in this suit, and to enjoin the executor from making any disbursements except those necessary to satisfy any preferred claims against the estate of the decedent. On October 4 the plaintiff filed an amended and supplemental bill of complaint by which she undertook to broaden the scope of this suit to permit the settlement of all matters relating to the three written instruments that could properly be heard and determined upon an appeal from the action of the county court to the Circuit Court of Upshur County with respect to the probate of those instruments. Porter Maxwell, Jr., another principal beneficiary named in the written instrument dated February 11, 1946, originally a defendant in this suit, filed his answer in which he admitted the allegations of both bills of complaint and, upon request that he be transferred from a defendant to a plaintiff, became, by order entered by the trial court, a co-plaintiff with Columbia M. Black, who was the original plaintiff in this suit.
Eight of the defendants, Carrie V. Maxwell, Harriet M. Jarvis, Emma F. Latham, Blanche M. Harrison, sisters; Christine Thompson, a niece; Isaac H. Maxwell and Porter Jarvis, nephews; and S. R. Harrison, executor of the will of Frank P. Maxwell, onJanuary 14, 1947, filed their demurrers in writing to the bills of complaint and in support of their demurrer assigned in substance these grounds: 1. The paper writing dated February 11, 1946, is not the last will and testament of Frank P. Maxwell and the cause of action based upon it must fail because: (a) It is not signed by Frank P. Maxwell; and (b) his name does not appear in it in such manner as to make it manifest that his name is intended as a signature, as required by Chapter 41, Article 1, Section 3, Code of West Virginia, 1931.
2. The bills of complaint are multifarious for the reason that the amended and supplemental bill of complaint seeks to convert the original bill of complaint, which undertakes to state an equitable cause of action, into a petition for an appeal from the order of probate of the county court, and that an appeal is a purely legal proceeding.
By final decree, entered February 1, 1947, the circuit court sustained the demurrer of the named defendants on the ground that the paper writing dated February 11, 1946, is not signed by Frank P. Maxwell and that his name does not appear in it in such manner as to make it manifest that it is intended as a signature, held the original bill of complaint and the amended and supplemental bill of complaint insufficient in law, dismissed the bills of complaint, and dissolved the injunction previously granted by the court. By the provisions of the decree the court refused to grant the plaintiffs additional time in which to incorporate in the original bill of complaint or in an amended and supplemental bill of complaint to be filed, an amendment relating to the envelope in which the three writings were found after the death of Frank P. Maxwell which had been misplaced and lost by the executor or the husband of one of the defendants and had not been produced, and which the plaintiffs charge contained the entry or the notation 'F. P. Maxwell's Last Will Feb. 11, 1946', and also refused to permit the amendment of the original bill at that time at the bar of the court by inserting in it the name of the husband of one of the defendants in the caption and making him a defendant to this suit in order that he be required to produce the envelope or explain its absence, and by incorporating the foregoing facts with respect to the missing envelope. From this final decree the plaintiffs obtained an appeal to this Court.
When Frank P. Maxwell wrote and signed the holographic instrument dated September 8, 1944, his wife Rita, and Hudson F Farnsworth, the husband of his only child, a daughter, Virginia Lee Fransworth, who died August...
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