Gill v. Gill

• Decision Date: 20 April 1979
• Docket Number: No. 771386,771386
• Citation: 219 Va. 1101,254 S.E.2d 122
• Parties: Patricia Wing GILL v. John R. GILL et al. Record
• Court: Virginia Supreme Court

Page 122

254 S.E.2d 122

219 Va. 1101

Patricia Wing GILL v. John R. GILL et al.

Record No. 771386.

Supreme Court of Virginia.

April 20, 1979.

Lawrence G. Cumming, Hampton (Thomas R. Watkins, Kenneth G. Cumming, Cumming, Watkins, Chase & Williams, Ltd., Hampton, on brief), for appellant.

Mark P. Friedlander, Jr., Washington, D. C. (Mark P. Friedlander, Friedlander, Friedlander & Brooks, Washington, D. C., on brief), for appellees.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

POFF, Justice.

This appeal arises from a will contest based upon allegations of undue influence.

In 1957, four years after the death of his first wife, Dr. John Russell Gill, a medical practitioner (testator), married Patricia Wing Gill (the widow or Mrs. Gill). In 1972, he executed a formal will granting his widow a life estate in a trust and the marital residence, with remainder to his grandchildren. Testator died April 30, 1976 leaving a holographic will dated January 22, 1976 bequeathing five dollars to each of his two sons ¹ by his first marriage and the residue of his estate in fee to his widow. Appealing from the order probating this instrument, testator's two sons and their six children, ² infants acting by their fathers as next friends (collectively, the contestants), alleged that the instrument was the product of undue influence on the part of the widow. By final judgment order entered May 28, 1977, the trial court confirmed the jury's verdict that the instrument was not the testator's true last will and testament.

The dispositive issue posed by the widow's appeal is whether the evidence was sufficient to support a finding of undue influence. Addressing that issue, we summarize the evidence in the light most favorable to the contestants. Lewis, Ex'r. v. Roberts, 207 Va. 742, 744, 152 S.E.2d 44, 45 (1967).

The widow's marriage to testator, who was 14 years her senior, was her third; one prior marriage had ended in divorce and another in annulment. A conservative and frugal man, testator limited the funds available to his second wife to those necessary for basic expenses, a policy which led to some marital discord when she made what he considered extravagant purchases on credit. In support of their contention that the testator's temperament underwent a gradual change as his wife's dominance increased during the 19 years of their marriage, contestants find special significance in the following events disclosed by the evidence.

Upon completion of his younger son's education in 1961, testator suddenly diversified his investments by purchasing real estate in California; he also bought 100 shares of IBM stock, certificated jointly in his and his wife's names.

Three events occurred in 1972. Testator bought a second house located in Gloucester only 17 miles from his home; the deed was made jointly to him and his wife, and departing from his consistent custom, he financed the purchase with a mortgage. He opened a second medical office in Gloucester and, at the age of 68, substantially increased his working hours. He also executed the 1972 will naming his wife sole life tenant in the assets of his entire estate.

Testator strongly objected to the lifestyles followed by his wife's son and the young man's "boyfriend" and forbade them to enter his home. Yet, in 1974 Mrs. Gill induced him to withdraw the injunction. In a letter to a friend, she wrote that her son had exclaimed, " 'Mother, you're a genius you did it again.' He feels I've made a new person of John (testator)".

In 1975, when testator had begun to show signs of poor health, he provided his wife $40,000 to help capitalize a pillow shop she had opened. Later that year, after Mrs. Gill was defeated in a bid for election to the vestry of the church testator had attended since 1934, she moved her membership to another church and persuaded her husband to attend services there.

The remaining evidence upon which contestants rely to show undue influence concerns events which occurred during testator's terminal illness.

In January 1976, testator was examined by Dr. Alexander G. Brown, III, described at trial as a friend of Mrs. Gill. Dr. Brown scheduled a cancer operation for January 26. Mrs. Gill notified testator's sons by telephone but suggested that they need not be present. Both came, however, and finding their father "drawn, thin, weak looking", they remained until the operation was performed. Testator was discharged from the hospital on February 7 but, beginning February 26, returned weekly for chemotherapy. Testator resumed his medical practice on April 1 and, helped into his office chair by his wife, worked several hours a day before his death on April 30, 1976.

Following the operation, testator's sons, who had returned to their homes, tried to reach their father by telephone but were unable to do so. Late in February, they had planned to pay him another visit, but Mrs. Gill told them not to come because testator was too tired. The night before testator's death, she told one of his sons that testator had left no will and inquired about the details of administering an estate. On the day after testator's funeral she told testator's sister that he had made a will leaving everything to her.

Mrs. Gill testified that she visited testator in his hospital room between the hours of 10:00 a. m. and 3:00 p. m. on January 22, four days before his surgery; that testator told her to look in a bureau drawer while he walked down the hall; that when he returned he told her to take the paper writing she found there and put it in their safe-deposit box at the bank; and that she read the paper and did as she was told. Challenging the credibility of this testimony, contestants contend that the hospital records show that testator was undergoing medical attention during the time Mrs. Gill was there.

The holographic will was dated January 22, 1976. It was witnessed by Dr. Brown and James E. Markham, comptroller of the hospital Dr. Brown served as a corporate director. In a pre-trial deposition, Markham believed that he and Dr. Brown had witnessed the will some time in March while testator was undergoing chemotherapy. In his deposition, Dr. Brown said that the document was witnessed in February. Prior to trial, at the suggestion of the widow's counsel, Dr. Brown and Markham conferred and agreed that they had been mistaken as to the date and, at trial, both testified that they signed the document on January 22. Dr. Brown explained that he had left on vacation two days after testator's operation and had not seen him since that date.

As we understand contestants' theory of the case, they believe this evidence shows that, gradually over the course of her third marriage, Mrs. Gill became the dominant spouse, persuading her husband to change his fiscal policies, his religious affiliation, his work routine, his societal views, and his personal habits; that her influence increased as his health declined; that the holographic instrument was...