Grady v. Fauls

• Decision Date: 20 June 1949
• Citation: 189 Va. 565,53 S.E.2d 830
• Court: Virginia Supreme Court
• Parties: GRADY et al. v. FAULS et al.

53 S.E.2d 830

189 Va. 565

GRADY et al.

v.FAULS et al.

Supreme Court of Appeals of Virginia.

June 20, 1949.

Error to Circuit Court, Rockingham County; W. V. Ford, Judge.

Proceeding to probate the last will of John E. Kelley, deceased, brought by Myrtle Gray Grady and others, and opposed by W. Dwight Fauls and others. From a clerk's order of probate, the opponents appealed to the circuit court. To review the judgment setting aside the probate, Myrtle Gray Grady and others bring error.

Judment affirmed.

Before HUDGINS, C. J., and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES, and MILLER, JJ.

George S. Harnsberger, Harrisonburg, for plaintiffs in error.

Ward Swank, K. C. Moore, Richard A. Jackson, Laird L. Conrad, Harrisonburg, for defendants in error.

GREGORY, Justice.

John E. Kelley died on February 19, 1943, leaving an estate of an approximate value of $70,000. He was a resident of the city of Harrisonburg and was engaged in the fuel and building supply business. Hehad been twice married. By his first wife he had six children but none by his second wife. She survived him, as did four of his children. He was also survived by four grandchildren who were children of a deceased daughter.

On March 23, 1943, a paper writing bearing date July 20, 1938, was offered for probate as the last will and testament of John E. Kelley, deceased. It was duly admitted to probate, and the First National Bank of Harrisonburg, the named executor, qualified as such, and from that time has continued to act as such fiduciary.

Under the will the testator bequeathed to his daughter, Honora Toppin, $1,000, and to another daughter, Mary Fauver, $2,000. These sums were to be paid promptly, and they were to have no further interest in the estate.

The widow was given $75 per month during her lifetime, and a life estate in a residence. The testator gave his bank stock to the bishop of the Catholic church, and $50 was given to each of six children for whom he had acted as Godfather. The residue of his estate was given to his other daughters.

An envelope addressed to Myrtle Gray (who is also known as Myrtle Gray Grady), at Harrisonburg, and received by her, which was postmarked Hamlet, North Carolina, July 13, 1945, contained another paper writing, bearing date October 19, 1940, which purported to be the last will and testament of John E. Kelley. It was admitted to probate before the clerk of the Circuit Court of Rockingham county, on July 25, 1945, in an ex parte proceeding. This purported will is as follows:

"October 19, 1940

"I leave all my Bank stock to the Catholic Church of Harrisonburg.

"To my wife, Ethel L. Kelley, I leave the sum of seventy-five dollars, $75.00 per month as long as she remains my widow.

"To Myrtle M. Gray, I leave the house and lot on Third Street.

"To Albert Reedy, I leave the sum of five hundred dollars, $500.00.

"To my grandchildren, I leave the sum of one thousand dollars, $1,000.00 each.

"The rest of my estate is to be divided equally among my living children, share and share alike.

"I hereby appoint Sam Toppin my administrator.

"John E. Kelley

"K. M. Higgs

"Thomas Phalen, Jr."

The body of this will, hereinafter referred to as the will of 1940, was written on a typewriter.

An appeal was taken from the clerk's order of probate to the circuit court where the issue to be tried was whether the will of 1940, quoted above, was the last will and testament of John E. Kelley, deceased. A jury was waived, and the issue was tried by the court. The trial resulted in a judgment of the court holding that the will of 1940 was not the true last will and testament of John E. Kelley, deceased, and accordingly the probate thereof by the clerk was set aside. It is from that judgment this writ of error was granted.

The assignments of error revolve around the fundamental question of the genuineness of the signatures of the testator, John E. Kelley, and of the witnesses, K. M. Higgs and Thomas Phalen, Jr., to the will of October 19, 1940. If any one of these signatures is not genuine the will was properly rejected for probate.

The court, after mature consideration of all of the evidence, held that the signatures on the will were not genuine. Our review under elementary principles is limited to the issue of whether there was or was not sufficient evidence to support the finding of the court rejecting the will.

There are two other questions to be decided, but they will be discussed in a later portion of this opinion. In cases of this kind the controlling rule is as stated by the court below, in its comprehensive opinion, as follows:

"As heretofore stated, the mere production of the paper writing dated October 19, 1940, creates no presumption whatsoever as to its execution. It is first necessary that the signature of John E. Kelley, and the signatures of K. M. Higgs and Thomas Phalen, Jr., the two attestingwitnesses are all geniune, i. e., all three signatures are in the respective handwriting of said testator and witnesses, before any presumption arises as to said will being duly and legally executed. Said signatures and handwriting are the primary and basic facts which must be proved. In any probate proceeding the burden is on the proponents to show by a preponderance of the evidence that the purported will is written and executed in the manner prescribed by the statute, and the opponents are not required to prove that the writing is not genuine.

"The court is of the opinion that the rule enunciated in Cross v. Grimes, 184 Va. 926, 37 S.E.2d 1, 3, is applicable to the instant case. Justice Eggleston in rendering his opinion said:

" 'The contention is next made that the trial court's finding that the writing in part is not that of the deceased, but is a "forgery, " is not supported by proof of a sufficient degree. In other words, it is said, the proof fails to show, "beyond all reasonable doubt, " or even "clearly and convincingly, " that the writing is not genuine.

" 'The trouble with this argument is that it overlooks the elementary proposition that in a probate proceeding, the burden is on the proponents to show by a preponderance of the evidence that the purported will is written and executed in the manner prescribed by the statute. Code, § 5229. See Brown v. Hall, 85 Va. 146, 157, 7 S.E. 182; Triplett's Ex'r. v. Triplett, 161 Va. 906, 916, 172 S.E. 162. The contestants are not required to prove, as the plaintiffs in error seem to think, that the writing is not genuine.'"

The burden of proof was upon the proponents, the petitioners here, to show by a preponderance of the evidence that the will of October 19, 1940, was written and executed in the manner prescribed by the statute.

There were many witnesses who testified for and against the will. However, we are only interested in the testimony which tends to support the judgment of the trial court. If it supports the judgment it is not our duty to reconcile the conflicts in the evidence.

There are substantial differences between the provisions of the 1938 will and those of the will of 1940. Among them, the bequests to the two daughters are greatly increased in the 1940 will by including them as residuary legatees. Two new legatees are brought into the 1940 will, namely, Myrtle M. Gray, who was left a house and lot on Third Street, and Albert Reedy, who was given $500. This will took from the widow, Mrs. Kelley, a life estate in a house and lot which had been given her in the 1938 will. The monthly payments to her were the same in both wills, but in the 1940 will she was to receive the $75 per month only so long as she remained Kel-ley's widow. There are other differences but it is not necessary to call attention to them.

The 1938 will was prepared by a careful and skilled attorney. There were many provisions. The will of 1940 was brief, and upon its face discloses that it was not prepared by an attorney but by an untrained person in such matters.

The court had before it many specimens of the geniune handwriting of John E. Kelley, K. M. Higgs, and Thomas Phalen, and of course it had before it the 1940 will with the names of those gentlemen signed to it. It compared the genuine with the names written on the will, and in the light of the other evidence, it found that the signatures to the 1940 will by the testator and the witnesses were not genuine.

As to the signature of Thomas Phalen, "Jr., " the court was empathic in finding that it was spurious. The court found that there was no Thomas Phalen, Jr., and that the evidence failed to show that Thomas Phalen signed his name as a "junior." This finding is abundantly supported by a preponderance of the evidence. If Phal-en's signature was not genuine, and from the record we are bound to conclude that it was not, this alone would have justified the court in rejecting the will of 1940 and refusing to admit it to probate.

In addition to having the specimens of the genuine signatures to compare with those on the will of 1940, there was the testimony of Mrs. Kelley, the widow of the testator, who stated positively that Kelley'sname signed to the 1940 will was not in his handwriting. Supporting her testimony was that of an expert in handwriting who testified at great length and in detail, concluding that not only was Kelley's signature a forgery, but also that the...