Clark v. Studenwalt, 20475

• Decision Date: 29 June 1992
• Docket Number: No. 20475,20475
• Citation: 187 W.Va. 368,419 S.E.2d 308
• Court: West Virginia Supreme Court
• Parties: Arthur D. CLARK, Executor of the Estate of William Walter Clark, Deceased, Plaintiff Below, Appellant, v. Carolyn STUDENWALT, Pauline Shackleford, Laura Jean Bush, Sharon Linger, Shirley Loretta Hershman, Jane Buchanan, Betty Davis, Edwin R. Clark, Viola Jewell, Arthur D. Clark, Virginia Williams, Luttie Beachler, Bernice Cook, Darlene Bean, Robert Kelly, Jr., John Smith, Reta Clark and the unknown heirs of William Walter Clark, Deceased, Defendants Below, Appellees and Appellants.

Page 308

419 S.E.2d 308

187 W.Va. 368

Arthur D. CLARK, Executor of the Estate of William Walter Clark, Deceased, Plaintiff Below, Appellant, v. Carolyn STUDENWALT, Pauline Shackleford, Laura Jean Bush Sharon Linger, Shirley Loretta Hershman, Jane Buchanan Betty Davis, Edwin R. Clark, Viola Jewell, Arthur D. Clark Virginia Williams, Luttie Beachler, Bernice Cook, Darlene Bean, Robert Kelly, Jr., John Smith, Reta Clark and the unknown heirs of William Walter Clark, Deceased, Defendants Below, Appellees and Appellants.

No. 20475.

Supreme Court of Appeals of

West Virginia.

Submitted March 10, 1992.

Decided June 29, 1992.

Syllabus by the Court

1. "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 person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature." Syl.Pt. 2, Black v. Maxwell, 131 W.Va. 247, 46 S.E.2d 804 (1948).

2. The procurement by the testator of attesting witnesses for a holographic instrument fulfills the requirement established in Black v. Maxwell, 131 W.Va. 247, 46 S.E.2d 804 (1948), that a holographic will which does not bear a signature at its closing but does include the maker's name in its opening line must provide some internal evidence that the maker intended the writing of his name, wherever its placement, as his signature.

Roy D. Law, Hunter, Law & Levine, Buckhannon, for Arthur D. Clark.

W.T. Weber, Weston, for appellants.

J. Michael Benninger, William L. Frame, Wilson, Frame & Metheny, Morgantown, for appellee Virginia Williams.

WORKMAN, Justice:

Appellants Viola Jewell and Arthur D. Clark appeal from an order of the Circuit Court of Lewis County which declared the holographic ¹ instrument dated December 27, 1983, not to be the last will and testament of William Walter Clark ("Walter Clark") and further determined that Walter Clark died intestate. We reverse, finding that the writing at issue is a valid holographic will.

Walter Clark died on September 20, 1988, owning both real and personal property. A holographic writing purporting to be the last will and testament of Walter Clark, dated December 27, 1982, was offered for probate along with the affidavit of two attesting witnesses. Although Walter Clark did not sign the will in the presence of the witnesses, he declared the same to be his last will and testament in their presence when they attested the will on January 2, 1984. By order dated November 10, 1988, the Clerk of the Lewis County Commission probated the document dated December 27, 1983, as the last will and testament of Walter Clark.

On January 18, 1990, Arthur D. Clark, as executor of the will of Walter Clark, filed a civil action in the Circuit Court of Lewis County seeking interpretation of the will. In response to a motion and cross-motion for summary judgment, the circuit court, by order dated March 14, 1991, adjudged the holographic instrument dated December 27, 1983, purporting to be William Clark's last will and testament null and void for failure to satisfy the requirements of West Virginia Code § 41-1-3 (1982). Appellants challenge the circuit court's conclusion that the instrument in question is not a valid testamentary writing.

The statutory requirements for drafting a valid will are set forth in West Virginia Code § 41-1-3. That section provides:

No will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature; and moreover, unless it be wholly in the handwriting of the testator, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, and of each other, but no form of attestation shall be necessary.

The parties have stipulated that the instrument in question is in the handwriting of Walter Clark. The dispute at issue arose for the simple reason that the instrument offered for probate as Walter Clark's last testament does not bear his signature at the bottom of the document.

The document at issue begins with the heading "Will of Walter Clark" and bears the designation 12-27-83 to the right of its heading. The initial sentence of the instrument begins "Be it remembered that I Walter Clark of Route 3[,] Box 100[,] Weston[,] W[.] Va[.] county Lewis being of sound mind and memory do hereby make, execute and declare last will and testament." The document closes by stating "Witnesses By names below (without Bond)" and immediately below this line designates two separate lines with the words "Signed" at the left hand margin. To the right of each line designated for signatures are the signatures of Gerald William and Carol S. Williams, both bearing a signatory date of January 2, 1984.

Although holographic wills are unquestionably valid in this State, the provisions of West Virginia Code § 41-1-3 require that a holographic instrument must be signed by the testator. The statute, however, does not address where the testator's signature must appear on the document. "The only express requirement with respect to the act of signing is that it be done 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 S.E.2d 804, 809 (1948) (citing LaRue v. Lee, 63 W.Va. 388, 60 S.E. 388 [1908] ). Because there is no requirement that holographic wills be witnessed, appellants argue that the signatures of the two attesting witnesses provide the necessary evidence that Walter Clark intended the placement of his name, which appears twice at the beginning of the document, on such instrument as his signature.

This Court previously addressed the question of whether the placement of a testator's name in the first sentence of a holographic instrument fulfilled the signature requirement of West Virginia Code § 41-1-3. In Black the

vital inquiry ... [was] whether the act of the writer of the instrument in inserting his name in the first line in the part generally designated as the caption or the exordium, and in not affixing his name at the end or the bottom or on the margin of the paper, satisfied the requirement of the statute that to be a will the written instrument must be signed by the testator in such manner as to make it manifest that the name is intended as a signature.

131 W.Va. at 255, 46 S.E.2d at 809. We ruled that

[t]he writing of his name by the maker of a holographic instrument in its first line is an equivocal act...