Johnson v. Cauley, Record No. 002058.

• Decision Date: 08 June 2001
• Docket Number: Record No. 002058.
• Citation: 262 Va. 40,546 S.E.2d 681
• Court: Virginia Supreme Court
• Parties: Peggy H. JOHNSON, et al. v. Geneva H. CAULEY, et al.

546 S.E.2d 681

262 Va. 40

Peggy H. JOHNSON, et al. v. Geneva H. CAULEY, et al.

Record No. 002058.

Supreme Court of Virginia.

June 8, 2001.

William H. Oast, III (Andrew H. Hook; Oast & Hook, on briefs), Portsmouth, for appellant.

William F. Devine (Edith Diane Thompson; Christine H. Buchanan; Hofheimer Nusbaum, on brief), Norfolk, for appellees.

Present: All the Justices.

LACY, Justice.

In this appeal, we consider whether the trial court properly found that missing original testamentary documents were in the possession of the drafting attorney and were inaccessible to the testator, giving rise to a presumption that the documents were lost, not revoked.

Josephine S. Howell executed a will in 1985 and three codicils in 1987, 1990, and 1992. Upon her death in 1999, the original of the 1990 codicil was discovered in a safe in Howell's former home, but only copies of the will and the other two codicils were found. Three of her daughters, Amelia H. Spivey, Lynda H. Bond, and Geneva H. Cauley, and their children (collectively "Spivey") brought suit to establish the missing original documents as lost and to probate a copy of the missing will and codicils along with the original 1990 codicil. A fourth daughter, Peggy H. Johnson, and her children (collectively "Johnson") filed a counterclaim, charging that the missing documents had been destroyed by Howell and were therefore revoked, not lost.

After an ore tenus hearing, the trial court found that the evidence conclusively established that Howell executed each of her testamentary documents in the offices of her attorney, J. Louis Rawls, Jr., pursuant to a comprehensive estate plan. Furthermore, the trial court held that the evidence clearly established that the missing documents "were last specifically known to be in the possession of Mr. Rawls at his law office." Rawls predeceased Howell, and the current members of Rawls' law practice did not know what happened to the original documents.

Based on the available evidence, the trial court considered the documents to be in the possession of the attorney and not in Howell's possession at her death, and found, as a matter of fact, that Howell had no "reasonable possibility" of access to the will and codicils while they were kept at the law offices. Because Howell had neither possession of, nor access to, her documents, the trial court applied the presumption that the documents had been lost and concluded that the defendants had not met their burden to overcome that presumption with clear and convincing evidence that the documents had been revoked. Accordingly, the trial court entered an order establishing the copies of the 1985 will, the 1987 and 1992 codicils, and the original 1990 codicil as the final will and codicils of Howell. We awarded Johnson an appeal.

Johnson raises four assignments of error. These assignments challenge the trial court's findings that the documents were in the possession of Howell's attorney and that Howell had no access to those documents. Johnson also asserts that in determining whether Howell had access to the documents in question, the trial court used an erroneous test.

I.

We begin by reviewing familiar principles applicable in instances when original testamentary documents are missing. Under such circumstances, two different presumptions are available, depending on the last known location of the missing documents. First, if an executed will was known to be in the testator's custody but cannot be found after death, there is a presumption that it was destroyed by the testator animo revocandi, that is with the intention to revoke. Under these circumstances, the proponents of a copy of the will must show by clear and convincing evidence that the will was simply lost and not revoked by the testator. Second, if the evidence shows that after execution the will was not in the possession of the testator and not accessible to her, then a presumption of loss arises. The presumption of loss must then be rebutted by clear and convincing evidence that the will was revoked by the testator. Harris v. Harris, 216 Va. 716, 719, 222 S.E.2d 543, 545 (1976); Ballard v. Cox, 191 Va. 654, 659-60, 62 S.E.2d 1, 3 (1950). Which presumption is applied in a specific case depends on the threshold factual determination of whether the will was in the possession of the testator at death and, if not, whether the testator nevertheless had access to it prior to death.

II.

In this case, the trial court determined as a threshold factual matter that Howell had entrusted the custody of her original will and codicils to her attorney and that Howell did not have access to them thereafter. Johnson contends that the trial court erred in both of these findings. First, Johnson asserts that the conclusion that the testamentary documents were in the possession of Howell's attorney "flies in the face" of the evidence that the only remaining original document was found in Howell's former home, that no original documents were found in Rawls' law offices, that originals of prior wills and codicils were kept by Howell personally, that members of Rawls' firm testified that they had never lost an original testamentary document in their possession, and that, although the records of the firm showed the firm's possession of testamentary documents, the records did not show that these documents were in the firm's possession.

As a trier of fact, a chancellor evaluates the testimony and credibility of witnesses. Advanced Marine Enters., Inc. v. PRC Inc., 256 Va. 106, 120, 501 S.E.2d 148, 156 (1998). Thus, a finding of fact, made by a chancellor who has heard the evidence ore tenus, carries the weight of a jury verdict, and will not be disturbed unless plainly wrong or without evidence to support it. Va. Elec. & Power Co. v. Buchwalter, 228 Va. 684, 689, 325 S.E.2d 95, 97 (1985). Here, in addition to the evidence cited by Johnson, there was testimony that Howell stated to others that her testamentary documents were at Rawls' offices and notations on copies of these documents indicated that the originals were at Rawls' offices. In light of this evidence, we cannot say that the trial court's finding that the documents were in Rawls' possession was plainly wrong or without evidence to support it.

III.

Johnson next argues that even if the testamentary documents were in the possession of Rawls' law firm, the trial court erred in finding that Howell did not have access to them. We disagree with Johnson.

First, Johnson argues that in considering Howell's "accessibility" to the testamentary documents, the trial court required a "reasonable possibility of access" rather than simply a "possibility of access" as set out in our prior cases. Harris, 216 Va. at 719, 222 S.E.2d at 545. Johnson claims that, by requiring proof that Howell had a "reasonable possibility" of access, the trial court transformed the standard from one of possibility to one of probability.

Johnson's argument is one of semantics. The trial court's addition of the word "reasonable" was superfluous and did not impose a higher standard than that required by Harris. To the extent "reasonable" modifies "possibility," it restricts the circumstances of access to...