Brown v. Hardin

• Decision Date: 17 June 1983
• Docket Number: No. 810174,810174
• Parties: Margaret Cherricks BROWN v. Margaret Gault HARDIN. Record
• Court: Virginia Supreme Court

Page 291

304 S.E.2d 291

225 Va. 624

Margaret Cherricks BROWN v. Margaret Gault HARDIN.

Record No. 810174.

Supreme Court of Virginia.

June 17, 1983.

Daniel Hartnett, Accomac (Ayres, Hartnett & Custis, Accomac, on briefs), for appellant.

Jon C. Poulson, Accomac (R. Norris Bloxom, Accomac, on brief), for appellee.

Before COCHRAN, POFF, COMPTON, STEPHENSON, RUSSELL and THOMAS, JJ., and HARRISON, Retired Justice.

ALBERTIS S. HARRISON, Jr., Retired Justice.

Harry Bunting Cherricks, age 75, died in Chincoteague, Virginia, on January 10, 1979. During his lifetime he executed two wills, one dated March 26, 1957, in which he devised his estate to his sister, Margaret Cherricks Brown, and the other, dated November 14, 1978, in which he revoked the former will and devised his estate to a friend, Margaret Gault Hardin. The 1978 will was not found, and the earlier will was probated. Mrs. Hardin filed a suit to impeach the 1957 will and to establish the later will as the decedent's true last will and testament. A jury found in favor of Mrs. Hardin that the testator had not destroyed his 1978 will with the intention of revoking it. The trial court approved its verdict and ordered the 1978 will admitted to probate. Mrs. Brown has appealed.

The law controlling this decision is well settled and was recently summarized in Harris v. Harris, 216 Va. 716, 719, 222 S.E.2d 543, 545 (1976), as follows:

Where an executed will in the testator's custody cannot be found after his death there is a presumption that it was destroyed by the testator animo revocandi. This presumption, however, is only prima facie and may be rebutted, Jackson v. Hewlett, 114 Va. 573, 77 S.E. 518 (1913), but the burden is upon those who seek to establish such an instrument to assign and prove some other cause for its disappearance, Tate v. Wrenn, 185 Va. 773, 40 S.E.2d 188 (1946), Shacklett v. Roller, 97 Va. 639, 34 S.E. 492 (1899), by clear and convincing evidence, leading to the conclusion that the will was not revoked. Sutherland v. Sutherland, 192 Va. 764, 66 S.E.2d 537 (1951)....

Mr. Cherricks, hereinafter referred to as Cherricks or decedent, a banker in Wilmington, Delaware, for thirty-five years, retired and returned to his family homeplace in Chincoteague, Virginia in 1958. His wife had died in 1956, and he had no children. There, the decedent met Margaret Gault Hardin and her husband, Roland Lee, at a restaurant they owned and operated at that time. The Hardins befriended the decedent, and a close and intimate friendship developed. It was characterized by the exchange of gifts and by numerous favors which the Hardins performed for Cherricks and which he, in turn, reciprocated. Mrs. Hardin frequently supplied meals for the decedent, either at her home or at his, sometimes did his shopping, occasionally washed his clothes, and often drove him places. Mr. Hardin performed odd carpentry jobs for Cherricks and was otherwise helpful and accommodating to him. Cherricks was a frequent guest in the Hardin home, and he gave them vegetables from his garden.

In 1962, Cherricks' sister, Margaret Cherricks Brown, who was then a widow, also moved to Chincoteague. She had been living in Washington, D.C., where it appears that at one time she was living with Mrs. Woodrow Wilson as a companion and secretary. Mrs. Brown, a lady of substantial means, had previously built a home on the family property next door to her brother. She testified that she frequently gave him varying sums of money (approximately $40,000) to supplement his retirement pay, service pension, and earnings from his garden, fowls, and horses. A number of witnesses testified that Mrs. Brown had a drinking problem and that this was a source of some friction between the brother and sister. Mrs. Brown admitted that she drank and that her brother objected. She denied she was an alcoholic. Notwithstanding this, the relationship between the brother and sister was a close and affectionate one. The Hardins and Mrs. Brown were also friends and visited one another from time to time.

Mrs. Hardin testified that during the first week of November 1978, Cherricks told her that "he was going to will everything to me and he asked me to call Mr. Drummond Ayres [an Accomac attorney] and make an appointment." When asked if decedent gave any reason for changing the beneficiary of his estate from his sister to her, she answered, "He said she didn't need it and she drank too much."

Mr. Hardin testified that he was present when Cherricks told his wife that "he was going to leave everything to Margaret [Mrs. Hardin]. He said she had been good to him." Hardin also testified that at one time the decedent remarked to him that he thought about leaving his property to a cousin, Harry Clay Bunting, and that when Hardin observed that he thought the decedent would leave his property to his sister, Cherricks replied, "[N]o, she didn't need the money. He said she had plenty to do her as long as she lived and he said if he left it to her her niece would wind up with it and he didn't want her to have it."

B. Drummond Ayres testified that he represented Mrs. Brown but had not met her brother until November 14, 1978, when he came to his office with Mrs. Hardin and requested him to prepare a will. Ayres said that Cherricks was very brief and told him "I want to give everything to Mrs. Hardin and make her my executrix." The attorney did not question Cherricks but said he did look at him quizzically because he knew that Cherricks and his sister had a very close relationship. Ayres further testified that the only statement volunteered by the decedent, following his quizical look, was "She's been nice to me and I want to give her everything." He said that Mrs. Hardin took no part in the discussion, did not say anything, and made no effort to influence the decedent. Ayres did not remember whether Cherricks had the old 1957 will with him at the time. He did say that Cherricks was completely competent and lucid. The 1978 will was prepared, executed by Cherricks, and witnessed by Ayres and his secretary.

Mrs. Hardin testified that Cherricks had the 1957 will with him when he was in the attorney's office and that he left that office with both wills "in a white-looking folder or envelope or something. Mr. Ayres gave it to him." She said that she heard Cherricks say that he had to tear the old will up. They returned to Chincoteague, and Mrs. Hardin said the next time she saw the wills was the last of November, 1978 in Cherricks home. At that time Cherricks was going through some of his papers, looking for an insurance policy, and she noticed the two wills among his papers.

Mrs. Katherine Zagri, who lives in Silver Springs, Maryland, owns property in Chincoteague and has been visiting there since 1964. She testified that she knew of the close friendship that existed between Cherricks and the Hardins. She said that decedent was a part of the Hardin family. She knew of Cherricks' frustration over his sister's drinking habits and said that "he was concerned about her drinking. He was afraid she would hurt herself." She related a conversation that she had with Cherricks the last of November, 1978. On that occasion she said that Cherricks was very sentimental, showed her pictures of his wife taken when he was in the service, and frequently referred to Margaret Hardin as "daughter," and said "with tears in his eyes, 'I'm going to see to it that this girl is taken care of when I die.... She's done more for me than my own family.' " Mrs. Zagri described Cherricks as "a very private ... person," intense and the type "if he said he was going to do something he would do it. He had very definite ideas about his life and the way he lived it."

In 1973 Cherricks opened a savings account in the Farmers and Merchants Bank at Oak Hall, payable to Mrs. Brown as survivor. On December 4, 1978, Cherricks closed out the account and opened another account in his name alone. The bank's teller said he gave no reason for making the change and that they had no discussion about the transaction. The account showed a balance at that time of $18,467.56. Mrs. Hardin testified that on that day she was in Fayetteville, North Carolina and knew nothing about the transaction.

Mrs. Virginia Lassiter is a neighbor of Mrs. Hardin's daughter, Carolee H. Wheeler. She testified that she had gotten to know the Hardins and Cherricks through the Wheelers, and she recalled that Cherricks was visiting in the Wheeler home in Virginia Beach during the Christmas holidays 1978, when she had a conversation with him. She knew that the decedent considered himself one of the Hardin family and that the Hardins treated him as such. He expressed his appreciation of Mrs. Hardin's friendship with his sister and mentioned the fact that the sister "had a drinking problem that he couldn't tolerate." Mrs. Lassiter said that Cherricks was particularly touched by the fact that notwithstanding Mrs. Hardin's brother and Mrs. Wheeler's husband had died within a few days prior to Christmas, they thought enough of him to invite him at that time to spend Christmas with the family and that he had had a wonderful holiday with them. She said he expressed concern about Mrs. Wheeler and her four children and whether they would be financially secure. She testified that during their conversation the decedent said: " 'Well, in my way, I hope that some day I will be able to help them,' and he said Margaret and Roland had done so much for other people that he had recently, I believe he said the month before, changed his will and he said, 'It's impossible for me to repay them. They wouldn't take it if I offered it to them,' but he said, 'In my appreciation, what I have will be Margaret and Roland Hardin's and in that way they can in turn help their daughter.' " Mrs. Lassiter said that when she inquired if what he intended to do would not "present a problem," Cherricks replied, "No," that he had "a sister in a...