Gooch v. Gooch
| Citation | 113 S.E. 873 |
| Parties | GOOCH et al. v. GOOCH et al. |
| Decision Date | 21 September 1922 |
| Court | Supreme Court of Virginia |
[Ed. Note.—-For other definitions, see Words and Phrases, First and Second Series, Codicil.]
Appeal from Corporation Court of City of Roanoke.
Suit by Garrett G. Gooch, III, and others against Loulie M. Gooch and others. From a decree for defendants, plaintiffs appeal. Affirmed.
On May 17, 1909, Garrett G. Gooch, Jr., who then had no child living, executed his will of that date, in due form, by which he devised and bequeathed to his wife, Lou-lie M. Gooch, one of appellees, all of his property, real and personal, without making any provision for any child he might thereafter have.
The witnesses who attested this will were E. W. Poindexter and A. C. Hopwood, two attorneys in Roanoke, Va. In 1911 one of appellants, Garrett G. Gooch, III, was born, and in 1916 the other of appellants, Marcia Morton Gooch was born. Following the testator's death the said will was found among his private papers, was duly admitted to probate on January 26, 1920, and the appellees qualified as administrators c. t. a.
The bill filed by appellants claims that, as said children survived the testator, the said will is embraced within the operation of the statute making provision for pretermitted children (Code 1887, § 2527, now contained in Code 1919, § 5242), unless the writing presently to be mentioned, signed by the said testator after the birth of the children, constituted, as the appellees claim, a codicil to the said will, and "an intention to revive the same is shown" within the meaning of the statute (Code 1887, § 2519, now contained in Code 1919, § 5234).
The first-mentioned statute (Code 1919, § 5242), so far as material, is as follows:
"If any person die leaving a child * * * and leaving a will made when such person had no child living, wherein any child he might have is not provided for or mentioned, such will * * * shall be construed as if the devises and bequests therein had been limited to take effect, in the event that the child shall die under the age of twenty-one years, unmarried, and without issue."
The second mentioned statute (Code 1919, § 5234), is as follows:
"No will or codicil, or any part thereof, which shall be in any manner revoked, shall, after being, revoked, be revived otherwise than by the re-execution thereof, or by a codicil executed in manner hereinbefore required, and then only to the extent to which an intention to revive the same is shown."
The manner in which wills or codicils are required to be executed, referred to in the statute last quoted, is, so far as material, provided for in the statute (Code 1887, § 2514, now Code 1919, § 5229), as follows:
"No will shall be valid unless it be in writing and signed by the testator * * * in such manner as to make it manifest that the name is intended as a signature"
—then follow provisions requiring the signature to be made, or the will acknowledged by the testator, in the presence of at least two competent witnesses, etc., "unless it be wholly in the handwriting of the testator."
The material facts appearing in evidence in the record are as follows:
The writing which the appellees, as aforesaid, claim constituted a codicil, having the effect aforesaid under what is now section 5234 of the Code of 1919, was signed on April 23, 1019, delivered to a certain custodian and subsequently held by the latter, under the circumstances now to be mentioned.
On April 23, 1919, the said testator was a candidate for initiation into the Fifth Degree of the Order of Scottish Rite Masonry. As shown in evidence, every member of that order is obligated to see that the testamentary disposition of their property by deceased members "are carried out in so far as they legally may" and, to that end, it is a rule of the order that every candidate for the degree mentioned shall, at the time of his initiation, have in existence a will, which expresses the testamentary intent of the candidate, existing at that time, with respect to the disposition of the property he may leave at his death: and that rule requires that every candidate for such degree shall, if no such will is already in existence at such time, execute, before initiation, his will, upon a printed form therefor furnishedthe candidate by the order, which printed form is as follows;
Before the Initiation of the testator he was furnished by the secretary of the lodge with certain printed instructions, among which was the following:
"Write now in good faith, your last will and testament precisely as if you were about immediately to be engaged in battle and expected to fall in the action"—followed by the note: "(A legal form should be provided for the candidate.)"
The secretary further instructed the testator at that time that if the latter "already had a will in existence it would be not only necessary for him to so state on the printed form, * * * but also to sufficiently identify the will so that it could be located at the time of his death." (Italics supplied.)
Thereupon the testator, after the words "that is to say, " in the printed form, wrote, all in his own handwriting, the following:
—and signed bis name on the blank line opposite the word "[Seal]" on the printed form, as follows: "G. G. Gooch, Jr.." and wrote his name, " , " in the blank therefor in the printed form aforesaid of the attestation clause, and filled in the blanks therein left for the date with "23d, " "April, " and "19, " making the attestation clause read as follows:
"Signed, sealed, published and declared by the said G. G. Gooch, Jr., the testator, as and for his last will and testament; and we, at his request, and in his presence, and in the presence of each other, have hereunto subscribed our names as witnesses thereto this 23d day of April, 1919."
—the portion thereof which is in the handwriting of the testator being in italics.
Whereupon the testator delivered the paper to the said secretary, who filed it among the records of the lodge, as he was required to do by the rules of the order. There this paper remained until after the death of the testator.
On September 20, 1920, on motion of the aforesaid administrators c. t. a. in an ex parte proceeding, so much of the last named writing as was all in the handwriting of the said testator, together with the attestation clause with the blanks therein filled as aforesaid, was admitted to probata as a codicil to the aforesaid original will.
In October, 1920, the instant suit was instituted, the bill filed by appellants alleging substantially the aforesaid facts, and praying that the operation of the said original will be declared suspended by reason of the birth of the infant complainants, the said infant appellants; that the said later writing be declared of no binding force or effect; and that the said ex parte order of court of September, 1920, admitting such writing to probate as a codicil to said original will, be set aside and annulled.
The record discloses that the suit was instituted in behalf of the infants at the request of their said mother in order that the interests of such infants might be properly protected; and the positions taken by the appellees in the cause were taken merely for the purpose of raising the questions of law arising upon the facts for the determination of the court; and the depositions of witnesses were taken and read in evidence, developing the facts, solely for that purpose.
The court below directed an issue out of chancery to be tried by a jury at the bar of the court, and there was a verdict of the jury upon that' issue finding, in substance, that the later writing aforesaid was a codicil to the original will aforesaid, and that such will and codicil constituted the last will and testament of the said testator.
The decree under review was thereupon entered, which contains the same holding as the verdict of the jury, and dismissed the suit, thereby declining to interfere with the aforesaid ex parte action of the court admitting the original will and codicil to probate and approving of that action.
In this decree the following conclusions of the court are stated, namely:
That the aforesaid paper of which the portion in the handwriting of the testator is held to be a codicil, as aforesaid, "although not witnessed, is a sufficient compliance wtih the formal requisites for the exe-cution of a will, since the printed portions thereof may be disregarded and stricken out as surplusage, leaving a holograph will complete and entire in itself, " and
That such will (or codicil) "was executed [by the testator] under circumstances sufficiently recognizing and identifying his original will of May 17, 1909, and indicating a continuance of testamentary intent by which he was actuated in executing said original will."
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Montague v. Street
...followed by other states, as many treat the unnecessary matter as surplusage. See Cole's Will, 171 N. C. 74, 87 S. E. 962;Gooch v. Gooch, 134 Va. 21, 113 S. E. 873. These two California decisions, widely separated by years, show the consistent holdings of the California courts. See, also, E......
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Montague v. Street
...execution of a will. The nearest approach among cases cited, to a departure from the rule of strict construction is found in Gooch v. Gooch, 134 Va. 21, 113 S.E. 873, Graham v. Edwards, 162 Ky. 771, 173 S.W. 127. In the former case the "codicil was written on a printed form where the part w......
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