Briggs' Estate, In re

• Decision Date: 25 February 1964
• Docket Number: No. 12243,12243
• Citation: 148 W.Va. 294,134 S.E.2d 737
• Court: West Virginia Supreme Court
• Parties: In re ESTATE of Solon Brady BRIGGS, Sr., Deceased.

Page 737

134 S.E.2d 737

148 W.Va. 294

In re ESTATE of Solon Brady BRIGGS, Sr., Deceased.

No. 12243.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 21, 1964.

Decided Feb. 25, 1964.

Syllabus by the Court

1. A determination by a court of the domicile of a person that he died intestate is not binding upon the courts of another state in which he owned real estate at the time of his death, either upon the principles of res judicata or under the full faith and credit provision of the Constitution of the United States.

2. The general rule is that, with respect to personalty, the validity of a will is governed by the laws of the place of the testator's domicile, and, with respect to real estate, by the laws of the place where the real estate is situated, the place of the execution of the will being without legal significance or effect.

3. A holographic will may be in the form of a letter. To be valid, it must have been written with a present intent that it be operative and effective as a testamentary writing. Under the provisions of Code, 1931, 41-1-3, it is sufficient if such a will be signed merely by the first name of the testator, if it is signed 'in such manner as to make it manifest that the name is intended' as a proper signature to such will.

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.

6. R.C.P. 59(f) applies only after a trial by jury wherein a verdict was returned without direction thereof by the court.

Harold B. Eagle, Hinton, for plaintiff in error.

W. A. Brown, Hinton, for defendant in error.

CALHOUN, Judge.

This case is before the Court on writ of error to the judgment of the Circuit Court of Summers County, by which that court adjudged that a certain writing in the form of a letter was the holographic will of Solon Brady Briggs, Sr., a widower, who will be referred to in this opinion as the decedent.

At the time of his death in Detroit on December 11, 1961, and for more than fifteen years prior to that time, the decedent had been a resident of Michigan. He is survived by a son, Solon Brady Briggs, Jr. It appears from the record that the Probate Court of Wayne County, Michigan, entered an order declaring the decedent to have been a resident of that state; that he died intestate; and that his son is his sole heir at law and the distributee of his estate.

The letter which was held by the circuit court to be a holographic will was written by the decedent to his niece, Sarah Lucy Anderson Nortington, and mailed to her at her home in Washington, D. C. Subject to the ommission of five paragraphs dealing with personal matters, which embrace approximately one-half the length of the letter, it is as follows:

'635 E. Elizabeth

'Detroit 1, Michigan

'August 18, 1957.

* * *

* * *

'We never know how long we are going to live. I will be 61 next month. Hence the end cannot be too far away. If you are the longer liver I would like for you to take my affairs in hand and see to it my wishes are carried. I will have a will drawn up and you will be named the sole executrix of my last will and testament. I have no debts and so what is left after funeral expenses and a contribution to Va. Union University not exceed One Thousand Dollars will be yours. To keep the other members of the family from breaking the will give each one just one dollar. Of course you will get my home if I have not disposed before that time.

'Please write me and let me know if you will serve as the sole executrix of my last will and testament. I do not want the others to know about this. I'll have a will drawn up. You keep this letter for use if anything should happen to me before the will is drawn up. Of course if I should marry again, this will change a part of the will. I want you to have my home. It's not likely I shall marry again.

'Please bear in mind you will get everything left after funeral expenses, donation to Union and one dollar to my folks, and your folks have been taken care of.

'Let me hear from you soon,

'Yours,

'BRADY.'

Sarah Lucy Anderson Norington petitioned the County Court of Summers County to have the letter probated as a hologrphic will. The petition alleges that the estate consists of personal property in Michigan and real estate in Hinton, Summers County, West Virginia; and that a special administrator of the estate was appointed in Michigan. Apparently the personal estate was fully and finally administered in accordance with the laws of Michigan. An answer to the petition was filed by Solon Brady Briggs, Jr. Testimony was taken at a subsequent hearing before the county court. The testimony adequately establishes the fact that the paper was wholly in the handwriting of the decedent. The county court entered an order by which it declined to admit the writing to probate as a valid will. Upon appeal by Sarah Lucy Anderson Norington, the Circuit Court of Summers County held that the writing was a valid holographic will and directed that the county court probate it as provided by law. From that order of the circuit court, the writ of error was granted by this Court upon the petition of Solon Brady Briggs, Jr.

It is generally held that the right to make a will, particularly in relation to real estate, does not exist at common law but is entirely dependent upon statutory enactment. Goetz v. Old National Bank of Martinsburg, 140 W.Va. 422, 428-429, 84 S.E.2d 759, 765-766; Weese v. Weese, 134 W.Va. 233, 241-242, 58 S.E.2d 801, 807; Powell v. Sayres, 134 W.Va. 653, 663, 60 S.E.2d 740, 747; Black v. Maxwell, 131 W.Va. 247, 254-255, 46 S.E.2d 804, 808; Dower v. Seeds, 28 W.Va. 113, 141; McMechen v. McMechen, 17 W.Va. 683, pt. 9 syl.; 57 Am.Jur., Wills, Section 3, page 41; 94 C.J.S. Wills § 2, page 679 and § 3, page 680. Apparently counsel for the respective parties agree that holographic wills are not recognized under the laws of Michigan. See Compiled Laws of the State of Michigan (1948), Vol. IV, Chapter II, Section 702.5.

It appears inferentially from the record that an unsuccessful effort was made to have the writing probated in Michigan as a will. The general rule is that a determination of the validity or invalidity of a will by a court of the testator's domicile is not conclusive on that question in relation to real estate situated in another state, either upon principles of res judicata or the full faith and credit provision. This is true 'because (1) the foreign court has no jurisdiction or power to pass upon the title to real property not found within its territorial limits, and the constitutional provision presupposes a judgment or decree rendered by a court of competent jurisdiction; and (2) the decree of probate has no effect even in that state upon the title of real estate elsewhere, and the constitutional provision does not require the giving to foreign judgments greater effect than they have at home.' Anno. 131 A.L.R. 1023, 1033. To the same effect, see 95 C.J.S. Wills § 580c, page 699; 57 Am.Jur., Wills, Section 957, page 626; Thrasher v. Ballard, 33 W.Va. 285, pt. 3 Syl., 10 S.E. 411. For a recent case dealing with the binding effect of a judgment of a court of another state, see Aldrich v. Aldrich, W.Va., 127 S.E.2d 385.

The general rule is that the validity of a will with respect to personalty is governed by the laws of the place of testator's last domicile; and, with respect to realty, by the laws of the place where the realty is situated, the place of the execution of the will being without legal significance or effect. 94 C.J.S. Wills § 150, page 934. See also Thrasher v. Ballard, 33 W.Va. 285, 288, 10 S.E. 411, 412; Hornbrook v. Lutz, 66 W.Va. 39, 66 S.E. 10; Jones v. Hoard, 108 W.Va. 308, 315-316, 151 S.E. 183, 186; Capers v. White, 195 Va. 1123, 81 S.E.2d 597; Seaton v. Seaton, 184 Va. 180, 34 S.E.2d 236; Rinker v. Trout, 171 Va. 327, 198 S.E. 913; Harrison on Wills and Administration for Virginia and West Virginia (2d ed.), Vol. 1, Section 4, page 4, and Section 10(1), page 9. 'The law of the domicile of the testator determines the validity of a holographic will as to personalty and the law of the situs governs as to realty.' 94 C.J.S. Wills § 201, page 1038. In relation to real estate owned by the decedent in Summers County, therefore, the validity or invalidity of the writing as a holographic will must be determined by the laws of this state.

By Code, 1931, 41-1-3, provision is made for wills 'wholly in the handwriting of the testator.' Consequently, holographic wills are recognized in this state. Rice v. Henderson, 140 W.Va. 284, 83 S.E.2d 762; 20 M.J. Wills, Section 42, page 186. A holographic will may be in the form of a letter. Langfitt v. Langfitt, 108 W.Va. 466, 151 S.E. 715; Anno. 40 A.L.R.2d 698. There must, however, be a concurrence of a testamentary intent and a writing in proper form. Black v. Maxwell, 131 W.Va. 247, 46 S.E.2d 804. 'The writing must have been designed by the maker as an actual disposition of property to take effect after his death, and not merely as an expression of what he expected to do or desired that others should do.' Rice v. Henderson, 140 W.Va. 284, 291, 83 S.E.2d 762, 767.

In relation to the signature to the will, the only requirement of the statute is that the writing be signed by the testator 'in such manner as to make it manifest that the name is intended as a signature.' Black v. Maxwell, 131 W.Va. 247, 255, 46...