Moon v. Norvell, Record No. 2986.
| Decision Date | 14 January 1946 |
| Docket Number | Record No. 2986. |
| Parties | MARTIN MOON, ET ALS., ETC. v. VIRGINIA NORVELL, ET ALS., ETC. |
| Court | Virginia Supreme Court |
1. WILLIS — Execution — Purpose of Code Section 5229. — The purpose of section 5229 of the Code of 1942, in prescribing formalities for the execution of wills, is to prevent mistakes, imposition, fraud or deception.
2. WILLS — Execution — Ceremonies Required by Code Section 5229 Not Intended to Abridge Testators' Powers. — The ceremonies required by section 5229 of the Code of 1942, prescribing formalities for the executions of wills, were not intended to restrain or abridge the power of testators, but to guard and protect them in the exercise of that power.
3. WILLS — Requisites — Introductory Paragraph Expressing Testamentary Intention. — While an introductory paragraph and a paragraph providing for the payment of debts are usually found in wills, neither is necessary, and if the testamentary intention may be determined from other parts of the will, the formal expression of such intention is not essential.
4. DESCENT AND DISTRIBUTION — Payment of Funeral Expenses and Debts — In Absence of Direction in Will. — When a will contains no specific directions for the payment of funeral expenses and debts, the provisions of section 5390 of the Code of 1942 control.
5. WILLS — Construction — Object Is to Sustain Will. — In the construction of wills, the object is not to seek flaws and declare them invalid, but to sustain them if legally possible, and the presumption is that the testator intended a lawful rather than an unlawful thing.
6. WILLS — Construction — Doubt Resolved in Favor of Construction Upholding holding Will. — Where the language used in a will is reasonably susceptible of two different constructions, one of which will defeat, and the other sustain the provisions, the doubt is to be resolved in favor of the construction which will give effect to the will, rather than the one which will defeat it.
7. WILLS — Holographic Wills — Sufficiency of Evidence to Show Old Typewritten Will Not Included — Case at Bar. — In the instant case, a will contest, contestants contended that a pencil writing made by the testatrix on the reverse side of the pages of an old typewritten will, which had previously been revoked by another typewritten will, was not wholly in the handwriting of the testatrix because the introductory paragraph and Article I of the old will, directing that debts and funeral expenses be paid, were undeleted and therefore were a part of the holograph instrument. The grounds of contestants' contention, in part, were that the two paragraphs in question of the old will were not deleted, while all other substantial parts of the old will were deleted by pencil marks; the absence of any introductory paragraph or provision for the payment of funeral expenses and debts in the pencil writing; the fact that the handwriting began close to the top of the back of the first page of the old will; and the use of the pages of the old will as the media for the new will. The manuscript did not refer in any way to the typewriting on the other side. The holograph instrument disposed of the entire estate of the testatrix, named the parties and the amount of property she desired each to receive, and appointed executors, although it did not contain an introductory paragraph expressing testamentary intention and did not provide for the payment of debts.
Held: That the evidence pointed positively and strongly to the conclusion that the testatrix not only did not intend any part of the old typewritten will to be embodied in her manuscript will, but that she did not have the old will at all in mind.
Error to an order of the Chancery Court of the city of Richmond. Hon. Brockenbrough Lamb, judge presiding.
The opinion states the case.
J. H. Rives, Jr., and Ellsworth Wiltshire, for the plaintiffs in error.
Louis S. Herrink and J. Kenneth Rader, for the defendants in error.
The beneficiaries named in a typewritten will, dated December 15, 1942, duly executed by Harriet N. Moon and properly attested, prosecute this writ of error to an order admitting a pencil writing, dated February 24, 1944, to probate as the last will and testament of the testatrix.
The dominant question presented is whether the will of February 24, 1944, is "wholly in the handwriting" of the testatrix.
Harriet Norvell, one of the former owners of famous Elk Island on the upper James, after her marriage to J. Luther Moon, took an active part in the religious and social welfare, as well as the financial activity, of Richmond. She was well educated and intelligent. She was chairman of the Board of Trustees of the Crippled Children's Hospital for several years, and served at various times on the boards of other charitable and religious organizations. She owned in her own right an estate valued at more than $125,000. On April 5, 1933, she duly executed a typewritten will in which she made a number of bequests to relatives and charitable institutions, gave the remainder of her estate to her husband in fee, and named him and the Bank of Commerce and Trusts of Richmond executors of her estate. This will, evidently prepared by an experienced scrivener, was properly executed in the presence of three witnesses. On December 15, 1942, she duly executed another will, consisting of four typewritten pages, prepared by Miss Elizabeth N. Tompkins, an able practicing lawyer of the Richmond bar. This will expressly revoked all previous wills and transferred her entire estate into a trust for the benefit of her husband, J. Luther Moon, who, in the meantime, had become non compos mentis. On the death of the husband, the trust estate was directed to be distributed to certain named beneficiaries. Elizabeth N. Tompkins was named the sole executor and trustee. Unless this will was revoked or superseded by the pencil writing of February 24, 1944, it was the last will and testament of the testatrix.
Mrs. Moon became dissatisfied with this will and, in November, 1943, indicated to an officer of the Bank of Commerce and Trusts, the committee for her husband, that she expected to change her will. One reason for her dissatisfaction was that the will of 1942 named only one executor, whereas she desired two executors to administer on her estate. Some time after this conversation, a member of the household called Mrs. Moon's attention to some old papers, and asked her to examine them and see if they were of any value. Among these papers Mrs. Moon found her old will, executed in April, 1933. On the reverse side of the pages of this old will, the testatrix wrote with a pencil another will, dated February 24, 1944, which the trial court admitted to probate. This will reads as follows:
Appellants contend that the pencil writing on the back of each of the three typewritten pages of the 1933 will was not all of the will of February 24, 1944, but that the introductory paragraph and Article I of this old will were undeleted and were a part and parcel of the holograph instrument. These paragraphs read as follows:
The grounds of appellants' contention, that the testatrix intended the two typewritten paragraphs to be a part of her will of February 24, 1944, may be summarized as follows:
(1) The appearance of the manuscript cover and the three legal size sheets containing the pencil writing;
(2) The two paragraphs in question were not deleted, while all other substantial parts of the old will were deleted by pencil marks;
(3) The absence of any introductory paragraph or provision for the payment of funeral expenses and debts in the pencil writing;
(4) The place of commencement of the handwriting on the back of the first page; and
(5) The use of the pages of the old will as the media for the new will.
The will of 1933 was typewritten on three sheets of legal size paper fastened to a blue manuscript cover. When the papers are folded in the usual manner, the following descriptive words appear on the front of the cover:
"My last will." The italicized words above were written with a typewriter; the other words were written by the testatrix with a pencil.
On the face of these pages, when unfolded, appears the...
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