Langfitt v. Langfitt

• Decision Date: 21 January 1930
• Docket Number: (No. 6620.)
• Citation: 151 S.E. 715
• Court: West Virginia Supreme Court
• Parties: LANGFITT et al. v. LANGFITT.

151 S.E. 715

LANGFITT et al.

v.LANGFITT.

(No. 6620.)

Supreme Court of Appeals of West Virginia.

Jan. 21, 1930.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Appeal from Circuit Court, Doddridge County.

Proceeding by Frank V. Langfitt and others to probate as the will of S. W. Langfitt, deceased, a letter written by decedent, opposed by Juliette C. Langfitt, widow of decedent On appeal from a decree of the county court denying probate, the circuit court ordered said letter to be probated and contestant brings error. Affirmed.

Jackson V. Blair, of West Union, and S. A. Powell, of Harrisville, for plaintiff in error.

W. Scott Stuart, of West Union, A. F. McCue, of Fairmont, and Steptoe & Johnson, of Clarksburg, for defendants in error.

HATCHER, J. S. W. Langfitt was operated upon for toxic goiter on January 11, 1928, dying therefrom two days later. The necessity of an operation had been determined about December 12, 1927. On December 22, 1927, he handed to his brother, Dr. Frank "V. Langfitt, the following letter dated December 19, 1927:

"Dear Frank:

"If I should fail to pull through this operation I want you to sell the Columbia Carbon Stock which is worth about $50000 and the Bonds which I have in the Union Bank worth about $25000 and divide the proceeds equally among my brothers and Sisters and Mamie Morrison.

"It is necessary that this arrangement be kept a profound secret among the family.

"The above items should not be appraised with my estate as they are not a part of it "Yours

"S. W. Langfitt."

The circuit court found that the letter was the will of the decedent, and as such ordered it to be probated. That finding is contested here by his widow, who had successfully opposed its probate before the county court

The appellant concedes that a valid will may be in the form of a letter (see Roberts v. Coleman, 37 W. Va. 143, 151, 16 S. E 482), and that the lower court was justified in finding from the evidence that the deceased was of testamentary capacity, and that the letter was written wholly by him. (See Code c. 77, § 3.) Her only contention is that the letter is not a testamentary paper. She raises the following points against an animus testandi:

"(a) The said letter is not testamentary in form, and does not contain a single testamentary word, phrase or expression;

"(b) It does not purport to dispose of all the writer's property;

"(c) It contains no residuary clause;

"(d) It does not appoint an executor;

"(e) It was not intended for publication by probate or otherwise, as is evident from the following statement therein: 'It is necessary that this arrangement be kept a profound secret among the family';

"(f) The direction in the letter that the items therein named should not be appraised with the estate of the writer, 'as they are not a part of it, ' conclusively shows that said letter was not intended to operate as a will; and,

"(g) The writer on February 19, 1924, having signed a formal typewritten will in which after making a specific bequest of $10,000.00 he bequeathed the balance of his estate to the same persons who are named as beneficiaries of the property mentioned in said letter, it is unreasonable to assume that he intended to make two wills disposing of the same property to the same beneficiaries."

We will refer to each point as lettered.

(a) The letter is not testamentary in form, but we are of opinion that the phrase "if I should fail to pull through this operation, I want you to sell, " etc., denotes testamentary intent. In England, as early as 1755, a letter containing the informal phrase "if any misfortune should happen to me" was held to be "clearly testamentary." See Repington v. Holland, 2 Lee, 106, 161 E. R. 280. A number of American decisions in which like expressions have been held to indicate testamentary intent are collected in Re Tinsley, 187 Iowa, 23, 32, 33, 174 N. W. 4, 7, 11 A. L. R. 826, of which the court said: "Many persons shrink from the bald mention of their own possible demise, and, when the disagreeable subject must be spoken of, make use of some figure of speech or euphemistic phrase which suggests the idea in less repulsive form. In ordinary parlance it is by no means unusual for a person in stating bis wishes or giving directions concerning what shall be done in the event of his death, to preface his statement with the expression, 'If anything happens to me, ' and in such case no one misunderstands or doubts the meaning of the phrase. Words of this general character have oftenbeen considered by the courts, and held sufficient to indicate a testamentary intent."

(b, c and d) It is not essential to the validity of a will, that it dispose of all of the testator's estate, or name an executor, or contain a residuary clause. 28 R. C. L. p. 109, § 61; 40 Cyc. pp. 1078, 1079, §§ 5 and 6. In justice to counsel it should be stated that they do not insist that any single one of these items is requisite, but contend that the absence of all of them, from the paper, tends to show that the intention of the maker was not testamentary. It will appear later that a testamentary intention depends in no wise on these items.

(e and f) A testamentary intent being clearly demonstrated in the paper, that intent is not overthrown by the expressions referred to under these headings, even if they be inconsistent with such intent. "Where the general intent of the testator is clear, that general intent must prevail over the particular or special intent expressed in a part of the will, where it is impracticable from the language used to give effect to both the general and particular or special intent." Houser v. Ruffner, 18 W. Va. 244; Bell's Adm'r v. Humphrey, 8 W. Va. 1, 18; Bartlett v. Patton, 33 W. Va. 71, 80, 10 S. E. 21, 5 L. R. A. 523; 1 Harrison on Wills, § 193 (2); 1 Page on Wills (2d Ed.) § 812. The expressions under these headings merely indicate that the writer was not familiar with the law affecting the probate of wills, and the disposal of property thereunder, or did not understand he was making a will. The animus testandi of the writer does not depend on either contingency. Misconception of the law and of the relation of the bonds to the estate could not take away from the letter its testamentary operation. 1 Schouler...