Cross v. Grimes

• Decision Date: 04 March 1946
• Court: Virginia Supreme Court
• Parties: CROSS et al. v. GRIMES et al.

37 S.E.2d 1

184 Va. 926

CROSS et al.

v.GRIMES et al.

Supreme Court of Appeals of Virginia.

March 4, 1946.

Error to Circuit Court, Henrico County; Julien Gunn, Judge.

Suit by O. B. Cross, administrator cum testamento annexo of the estate of E. T. Dunn, deceased, and another, and Florence Grimes and others, to determine validity of writing purporting to be last will of E. T. Dunn, deceased. To review a judgment refusing to admit the writing to probate, O. B. Cross, administrator cum testamento annexo of the estate of E. T. Dunn, deceased, and another, bring error.

Affirmed.

Before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

George D. Bowles, of Richmond, for plaintiff in error.

H. M. Ratcliffe, of Richmond, for defendants in error.

EGGLESTON, Justice.

On May 19, 1943, E. T. Dunn, a retired member of the Richmond police force, but a resident of Henrico county, died at the age of seventy years. He left surviving his second wife, Mrs. Virginia Hilda Dunn, whom he had married eight years previously, and six adult children by his first wife. In addition to certain benefits in the Police Benevolent Association of Richmond, which he had directed should be paid on his death to his widow, the decedent left a small estate consisting of real andpersonal property of the approximate value of $2,000.

On May 24, 1943, O. B. Cross qualified as administrator of the decedent's estate. On February 9, 1944, the clerk of the Circuit Court of Henrico county, in an ex parte proceeding, admitted to probate a writing' purporting to be the last will and testament of the decedent. It was written on both sides of a plain card, three and one-half by two inches in size. The writing on one side of the card reads thus:

"Mrs. E. T. Dunn.

"Is a humbug, dont you think so

"Har Ha. but I"

On the other side it reads thus:

"owe every thing to her & leave all to my wife fee

simple. E. T. Dunn

"Nov. 3-1942."

The decedent's children by his first wife (the defendants in error here) appealed from the clerk's order of probate. Code, § 5249. A jury was waived by all parties, and by consent the evidence was heard ore tenus by the lower court. The sole issue was whether the purported holographic will was wholly in the handwriting of the deceased, as required by Code, § 5229. The lower court decided that it was not, refused to admit the writing to probate, and to review a judgment to that effect the present writ of error has been allowed.

The main contention is that the finding of the trial court is contrary to the evidence and without evidence to support it.

The oral testimony of the various witnesses was not taken down and transcribed by a reporter, and hence we are furnished only with a summary of this, agreed to by counsel and certified by the trial court in the usual manner.

Mrs. Dunn testified that in January, 1944, about eight months after the death of her husband, she found the writing on a "sticker" receipt file in the attic of the bungalow which she and her husband had occupied up to a short time before his death. On the file with the purported will there were no other valuable papers, but only a number of sales tickets.

Mrs. Dunn further testified that she had aided her husband in financing the purchase of their home, and that he had "many times told her he was going to fix things for her." She was of opinion that the handwriting on both sides of the card was that of her late husband. Her opinion of the genuineness of the handwriting and the signature was corroborated by the testimony of her sister, her niece, and the administrator of the estate. Both the president of a local bank with which the decedent had transacted business for some time, and a notary in the Richmond Police Department who had taken the decedent's acknowledgment some four years prior to his death, likewise thought the signature was genuine.

On the other hand, two of the decedent's daughters and a son testified that the entire writing was not that of their father, and that some of the words, as well as the purported signature, had been traced on the card by means of carbon paper. The daughters testified that their father was quite particular about his financial transactions and the manner in which he preserved his "valuable papers." Mrs. Grimes testified that these papers her father had brought with him when he moved to her house, in Richmond, for convenience of treatment shortly before his death. She said that only two or three days prior to his death her father stated to her that he had not made a will. Both daughters likewise testified that their father and mother were a devoted couple and that he often affectionately referred to her as a "humbug."

H. A. Cassidy, an inspector of special agents for the Chesapeake & Ohio Railway Company, who had had considerable experience in the examination of documents as a handwriting expert, testified for the contestants. He had made before the trial, he said, a critical examination of the handwriting in the purported will and had compared it with other specimens of the handwriting of the deceased, concededly written at or about the time of the date of the instrument. He was of opinion that the words, "Mrs. E. T. Dunn Is a Humbug, dont you think so Har Ha, " were written with a lead pencil and were wholly in the handwriting of the deceased, but that the remainder of the document was not written by him. A number of the words, or portions of words, in the latter part of the writing, he pointed out, were not written with lead pencil, but were traced on the card by means of carbon paper. He also...