Gilmer v. Brown
| Decision Date | 03 September 1947 |
| Citation | 186 Va. 630,44 S.E.2d 16 |
| Court | Virginia Supreme Court |
| Parties | GILMER. v. BROWN et al. |
Appeal from Circuit Court, Albemarle County; Lemuel F. Smith, Judge.
Bill by John A. Brown and others against Rosa Belle Gilmer to compel defendant to offer alleged will of Mary Thomas, deceased, for probate so that complainants could contest its validity. From a decree in favor of the complainants, the defendant appeals.
Decree reversed and case remanded with directions to enter order upholding validity of will.
Before HOLT, C. J., and HUDGINS, GREGORY, EGGLESTON, SPRATLEY, and BUCHANAN, JJ.
Homer Richey and William Eskridge Duke, both of Charlottesville, for appellant.
Charles H. Houston, of Washington, D. C, and Bernard P. Chamberlain, Edward W. Scott and R. Watson Sadler, all of Charlottesville, for appellees.
This case involves the validity of a will.
Mary Thomas, whose age was estimated to be anywhere from 60 to 80 years, was one of seven or eight children of Albert Brown and wife, respectable Negroes, who owned and lived on a small tract of land near Shadwell about six miles east of Charlottesville, Virginia. All of these children except Rosa Belle Gilmer, who lived and worked in Charlottesville, at or before maturity left their parental home and went to Washington or West Virginia. Mary was a steady worker and frugal. While working in Washington she saved nearly $10,000. In 1927, she returned to her parental home and lived there with her father until he died in 1937. She continued to live on the tract of land inherited by her and her brothers and sisters from their parents until late in 1939. During this time she lived alone except for short periods when Martha Gilmer or Henrietta Brown stayed with her. Rosa Belle Gilmer drove from Charlottesville to Mary's home twice a week and took her food, clothing and other necessities. Mary regarded Rosa Belle as her closest relative and the one to whom she turned for aid and comfort. Some of Mary's brothers and sisters visited her once or twice a year. Her brother John brought her a ton of coal and made other small gifts.
On or about February 17, 1939, Rosa Belle Gilmer took Mary to the office of W. E. Duke, who for many years had been the attorney for this Negro family, and they informed him that Mary had been "flimflammed" of $1,500 of her hard-earned savings by a strange Negro woman upon a false promise that this stranger would buy a farm near Richmond and take care of Mary for the rest of her life. Mary had paid the stranger $1,500 in a lawyer's office in Richmond, after which the stranger had disappeared with Mary's money and could not be apprehended. These two Negro women asked Mr. Duke to take and keep safely all of Mary's property. Mr. Duke declined to assume this responsibilityon their mere request, but he advised them to have a guardian or committee appointed for Mary.
Mr. Duke requested Mr. Homer Richey, another Charlottesville attorney, to draw the proper petition for the appointment of a committee. On February 22, Rosa Belle, with Mary, returned to Mr. Duke's office and signed and swore to the petition. On the same morning the petition was presented to the Honorable Lemuel F. Smith, judge of the Circuit Court of Albemarle county. The judge appointed a guardian ad litem for Mary, and, after examining the two women in open court, adjudged that Mary's infirmities did not require the committal of her person to a guardian but that "Mary Thomas by reason of mental and physical infirmity, impaired health and advanced age, is incapable of taking proper care of her property and incapable of handling and managing said estate and has been so for some years, " and named Messrs. Duke and Richey committees for her.
The two Negro women returned to Mr. Duke's office from the court house and Mr. Duke, at Mary's request, wrote a will bequeathing and devising all of Mary's property to Rosa Belle Gilmer, should she survive the testatrix and upon the condition that she take care of the testatrix during the rest of her natural life. In the event that Rosa Belle Gilmer predeceased the testatrix, the property was bequeathed and devised to two nieces, Henrietta Brown and Martha Gilmer. The will was duly executed in the presence of two subscribing witnesses.
Mary returned to her home in the country and continued to live there alone. Rosa Belle Gilmer continued to visit her twice a week and expended the $15 a month allowed by the court and such additional sums of her own as necessary for the support and maintenance of Mary Thomas.
Several months after the will was written, a sister of Mary Thomas residing in Washington, while on a visit to Charlottesville, saw a copy of Mary's will in Mr. Duke's office.
In November, 1939, John A. Brown visited his sister and stated that he found Mary in a deplorable condition, lacking food and clothing. He took her with him to Washington, where she died on October 24, 1940.
It seems that the will, which had been left with Mr. Duke for safekeeping, had been misplaced and was not found until eighteen months or more after Mary's death. In the meantime, John A. Brown, a brother, and four sisters of Mary Thomas filed the bill in this case against the other heirs at law and Homer Richey and W. E. Duke, committees, praying that Rosa Belle Gilmer be compelled to offer the alleged will for probate and that complainants be allowed to contest its validity; that an administrator be appointed on the estate of Mary Thomas and required to settle his accounts in the cause; and that W. E. Duke and Homer Richey be required to settle their accounts as committees in this proceeding. The respondents filed separate answers, after which the parties agreed "that said cause and all matters of law and fact at issue therein shall be referred to George Gilmer, one of the Commissioners of this Court."
Of the seven issues submitted to this commissioner, the first is stated thus:
"Whether said Mary Thomas was mentally competent to execute the will made by her on the 22 day of Feb., 1939, and whether the same should be declared to be valid and the true last will and testament of the said Mary Thomas, or whether said will should be set aside and declared to be null and void."
The commissioner, in an elaborate report which was approved by the trial court, held that the filing of the petition and participation in the proceeding for the appointment of a committee estopped Rosa Belle Gilmer from asserting in this suit that Mary Thomas possessed testamentary capacity on the day the order was signed and the will was executed.
The precise question presented is whether the issues in a proceeding to appoint a guardian or committee for an adult are the same as the issues in a suit to determine the testamentary capacity of the same adult.
Judicial estoppel and res judicata are frequently used interchangeably and have the same significance. Estoppel, be-cause it concludes a party from alleging the truth, must be certain to every intent and its scope should not be extended by argument or inference.
"It is essential to an estoppel by record that the identical question upon which it is invoked was in issue in the former proceeding.
" * * * 'There must be an identity of issues, and by this is meant that the issue raised in the second suit, upon which the evidential force of the former judgment is to be directed, must be identical with the issue, or one of the issues, raised and determined in the first action.' " Chesapeake & O. R. Co. v. Rison, 99 Va. 18, 34, 35, 37 S.E. 320, 325.
We have repeatedly held that a party may not assume successive positions in the course of a suit, or series of suits, with reference to the same fact or state of facts, which are inconsistent with each other, or mutually contradictory. Burch v. Grace St. Bldg. Corp., 168 Va. 329, 340, 191 S.E. 672, 677.
This court has also held that the appointment of a guardian or committee for the person and property of another is not conclusive evidence as to the mental capacity of such person to execute a deed (Waddy v. Crimes, 154 Va. 615, 153 S.E. 807); nor is a commitment to the insane asylum (Reed v. Reed, 108 Va. 790, 62 S.E. 792; Rust v. Reid, 124 Va. 1, 97 S.E. 324). In each of these cases the deed or will was executed some time after the date of the adjudication. See Wolfrey v. Swank, 184 Va. 922, 37 S.E.2d 17.
These decisions are in accord with the general rule that, in the absence of a controlling statute, the mere fact that one is under a guardianship does not deprive him of the power to make a will. Anno. 8 A.L.R. 1375; Page on Wills, vol. 1, 2 ed., sec. 710. Of course, mental capacity must be ascertained as of the date the instrument attacked was executed.
In re Weedman's Estate, 254 Ill. 504, 98 N.E. 956, 957.
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