Harris v. Harris

• Decision Date: 05 March 1976
• Docket Number: No. 750239,750239
• Citation: 216 Va. 716,222 S.E.2d 543
• Parties: Annie H. HARRIS et al. v. Edgar L. HARRIS, etc., et al. Record
• Court: Virginia Supreme Court

Page 543

222 S.E.2d 543

216 Va. 716

Annie H. HARRIS et al. v. Edgar L. HARRIS, etc., et al.

Record No. 750239.

Supreme Court of Virginia.

March 5, 1976.

J. Forester Taylor, Staunton, for appellants.

Humes J. Franklin, Richard A. Scholes, Waynesboro (Franklin & Franklin, Waynesboro, on brief), for appellees.

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

Wade Hampton Harris, a 95 year old resident of Augusta County, died on May 2, 1973, seized and possessed of real and personal property there. His heirs at law were two sons, seven daughters and one grandson, the only child of a deceased daughter. This suit was instituted in January, 1974, under Code § 64.1--88 by the proponents, the two sons and a daughter of Harris, against the opponents, his other heirs at law, to establish what the proponents alleged to be Harris' last will and testament. If this will is established the proponents will be the principal beneficiaries.

A trial by jury under Code § 64.1--83 was waived and the chancellor heard the evidence ore tenus. This is an appeal by the opponents from the chancellor's ruling probating a copy of the will as the last will and testament of Harris, the deceased.

In his letter opinion the chancellor did not discuss the law applicable to the case, nor did he make findings of fact. To have arrived at the conclusion which he reached, however, the chancellor must have found either:

(1) that the rebuttable presumption of revocation, which arises when a will in the testator's possession, or accessible to him, cannot be found after his death, had no application; or

(2) that the presumption of revocation did apply, but that this presumption was overcome by the evidence of the proponents.

The evidence conclusively establishes that Harris and his wife duly executed complementary wills in late March of 1957. The evidence likewise clearly establishes the contends of Harris' will. Margaret Harris Shuler, the only proponent who testified, said that the two executed wills were 'kept together' by Harris, who placed them 'in his drawer or in his closet' in the downstairs bedroom which he and his wife occupied at the Harris home.

Mrs. Harris died in 1963. Mrs. Shuler qualified as administratrix of her mother's estate, representing to the Clerk of the Circuit Court of Augusta County that Mrs. Harris died intestate. Mrs. Shuler testified that her father retained possession of his will 'until long after' it was executed. She said that she then took it from his closet, without her father's knowledge, and 'put it away for safekeeping' between some articles of clothing in a chest of drawers in her bedroom. This bedroom was located on the second floor of the Harris home. Mrs. Shuler's testimony about when this incident occurred is quite vague and confused.

At one place in her testimony, upon being asked when she took the will, she stated '. . . I imagine it was five years or more before he (her father) died.' At another point she testified that it 'probably was five years or more' after execution of the will before she obtained possession of it. On cross-examination, in response to a question about when she took the will, she agreed that it was 'nine or ten years' before her father entered a nursing home. The other evidence establishes that Harris entered the nursing home in October, 1970.

Mrs. Shuler further testified that she discovered the will was missing from her chest of drawers 'a couple or more years' after she obtained possession of it. At another point she said she discovered that the will was missing 'quite a few years before' October, 1970, when her father entered the nursing home. Mrs. Shuler was not asked, and her testimony does not disclose, whether she ever reported to her father or to anyone else, prior to her father's death, her discovery that the will was missing.

The evidence shows that Harris, Mrs. Shuler and one of Harris' sons, Clarence Harris, were the only persons who regularly resided at the Harris home after Mrs. Harris' death in 1963. Harris occupied the only bedroom on the first floor of the house, and Mrs. Shuler and Clarence Harris, another of the proponents, each had a bedroom on the second floor.

All of the testimony shows that Mr. Harris, although then 85 years of age, was physically strong and mentally alert prior to his wife's death in 1963. It is uncontroverted that Harris, while in declining health thereafter, was physically able to 'walk good' until shortly before he became ill and entered a hospital in late August of 1970.

The evidence further shows that Harris began to fail mentally sometime after his wife's death. Mrs. Shuler testified that his mind began to fail him 'a couple of years or more' before he entered the hospital in August, 1970. She described his condition as 'an old mind . . . he would forget what you would tell him (and) he couldn't remember things as good,' and that for 'about five years' before her father's death '(h)is bedroom was downstairs and he stayed downstairs.'

Isabelle Harris Gibson, one of the opponents of the will, testified that prior to entering the nursing home her father was 'very senile and his memory was bad and my sister (Mattie Harris Reid) and I would spend time, about every other day I would be there to watch him just like a baby . . . because he would run off.'

The controlling legal principles which control here are well settled in Virginia. Where an executed will in the testator's custody cannot be found after his death there is a presumption that it was destroyed by the testator Animo revocandi. This...