"Edwin M. Pilcher died in the city of Richmond, Va., on the 16th day of January, 1913, at the home of his sister, Mrs. Worsham, at the age of 46 years, after an illness of about six months, from an affection of the heart, known as endocarditis, leaving surviving him his widow, the appellee, and his father, the Rev. John M. Pilcher, his sole heir at law and next of kin. He had been a member of the bar of that city for about 20 years, and, for some years preceding his death, was a commissioner in chancery of the chancery court of the city of Richmond. He was regarded as an accurate and careful lawyer, and experienced in the drawing of legal papers.
"For seven years prior to his last illness he had been engaged to be married to the lady who is now his widow, who lived in Wheeling, W. Va., but their marriage had been postponed from time to time because her mother's health was bad, and she was the only daughter at home. Early in December, 1912, when Mr. Pilcher's condition had become very serious, his fiancee came to Richmond and they decided to be married at once, so that she might remain with him and help nurse him. They were accordingly married in his sick chamber on December 10, 1912, at the home of his sister, Mrs. Worsham.
"On December 15, 1912, Mrs. Pilcher's sister, Mrs. Belle K. Woods, came to Richmond and stayed with Mrs. Pilcher for about a week. On December 17th or 18th, while Mrs. Woods was alone with Mr. Pilcher in his sick chamber, he told her that he wished to make his will, and requested her to get him a piece of paper for that purpose. She was making some objection to his undertaking to write his will then, when Mrs. Pilcher entered the room, took her seat beside his bed, and proceeded to finish in pencil a letter to her mother, which she had already partly written in ink. Mr. Pilcher then said to his wife, 'I am going to make my will, ' and asked her for a piece of paper. She, too, tried to dissuade him, but he reached over and took from Mrs. Pilcher her pencil, her uncompleted letter, and the book, or magazine, upon which she was writing, and, resting the book, or magazine, against his knee wrote with the pencil
upon the hack of the sheet on which Mrs. Pilcher had already written part of her letter in ink, the following words:
" 'I give to my wife, Alice McCabe Pilcher, all of my property, real and personal. E. M. P.'
"He then tore off that part of the paper on which these words were written and, holding it up, said, 'Girls, this is my will. I have left Allie everything I have.' Mrs. Woods commented on the brevity of the document, and he replied, 'The shorter, the better.' Mrs. Woods then commented on the use of his initials, and he replied: 'Why, that is as good a will as any man can make; that will hold in any court, almost a mark will go, Belle.' He then said to Mrs. Woods: 'I want you to preserve this. That is my will. I have left everything to Alice. I want you to see that she takes care of it.' Mrs. Pilcher then placed the paper in a book or magazine in which she was pressing some violets, and Mrs. Woods did not see it again until it was found in Mr. Pilcher's bag in February, 1914, although Mr. Pilcher within the next day or two asked her where the paper was.
"On Christmas day, 1912, a friend came to see Mr. Pilcher while he was taking his bath, and, in hurriedly removing the basin, Mrs. Pilcher knocked off the table the magazine containing this paper, and the paper fell into the water. Mr. Pilcher made an effort to rescue it, but Mrs. Pilcher picked it up and, in the effort to dry it, the writing was blurred. Mrs. Pilcher does not remember what became of the paper after that, although she does remember looking for it. She says that she did not see it again until it was found 14 months afterwards under the circumstances to be hereinafter narrated.
"After this paper fell into the water, although it does not appear exactly when, at the request of Mr. Pilcher, Mrs. Pilcher brought to his bedside a package of his private papers, which he had expressed the wish to have preserved, and left them with him, and it was in that package that the will was subsequently found.
"On December 26, 1912, Mr. Pilcher wrote in pencil a formal holograph will, leaving all of his property to his wife, and appointing her as executrix thereof, but affixed to this paper neither his name nor initials. On cross-examination, Mrs. Pilcher stated that she knew why he wrote this paper, and that she did not think that he considered it as a will, but upon objection of counsel for contestant, she was not permitted to testify as to why it was written. This paper of December 26th was laid aside by Mrs. Pilcher, and was found after Mr. Pilcher's death in the drawer of the dresser in her room.
"Mr. Pilcher died on January 16, 1913, and Judge Daniel Grinnan, who was then a practicing attorney and had, for many years, been a warm personal friend of Mr. Pilcher, took charge of, and undertook for Mrs. Pilcher, the management of his affairs and estate, as she, because of her mental distress and agitation, was in no condition to do so. The paper dated December 26, 1912, above referred to, was found in Mrs. Pilcher's dresser and turned over to Judge Grinnan. The fact that this paper was not signed escaped the attention of all of the family, and even of Judge Grinnan, who, on January 23, 1913, accompanied Mrs. Pilcher and Mrs. Woods to the chancery court of the city of Richmond for the purpose of having said paper admitted to probate as Mr. Pilcher's will. Upon reaching the court the paper was shown to the presiding judge, who called Judge Grin-nan's attention to the absence of any signature. Thereupon Judge Grinnan abandoned the idea of offering the paper for probate and, instead, immediately moved on behalf of Mrs. Pilcher for her qualification as administratrix, and she at once qualified as such, although on account of a mistake in her name in the bond it was necessary for her to sign another bond on January 24th. In qualifying as administratrix, the clerk administered to her the formal oath tothe effect that as far as she knew or believed Mr. Pilcher left no will. A few days later Mrs. Pilcher returned with her sister to her old home in Wheeling, W. Va.
"Several weeks thereafter, in the latter part of February, 1913, Mrs. Pilcher was reminded by her sister, Mrs. Woods, of the will executed by Mr. Pilcher on December 17 or 18, 1912, and she at once wrote to Judge Grinnan telling him that such a paper had been drawn by Mr. Pilcher, and Judge Grinnan replied urging her to make a search for it, and to let him know if she found it.
"At that time her mother was very ill, requiring the constant attention of Mrs. Pilcher, her sister, and two trained nurses, and this condition remained unaltered until her mother died in October, 1913. In accordance, however, with Judge Grinnan's advice, Mrs. Pilcher and her sister then made such search for the will as their mother's condition permitted, but without success.
"After her mother's death in October, 1913, it was determined to break up the family home in Wheeling, and in February, 1914, while preparing to move, Mrs. Pilcher and Mrs. Woods came across a satchel of Mr. Pilcher's, which Mrs. Pilcher had carried from Richmond after his death, and in which they found a bundle of his private papers which he valued very highly, the same bundle which Mrs. Pilcher had handed to him at his request some time after Christmas day, 1912. In sorting over this bundle of papers they found an envelope upon which was written in the handwriting of Mr. Pilcher, but unsigned, this indorsement, 'My will, keep.' The envelope contained the paper which had been written by Mr. Pilcher on December 17 or 18, 1912, together with memoranda of certain personal directions to Mrs. Pilcher. At that time Mrs. Pilcher had no reason to think that there would be any contest over the validity of the paper as Mr. Pilcher's will, she attached no special value to the envelope, and, therefore, did not preserve it.
"Mrs. Pilcher at once showed the will to her father's attorney in Wheeling, who advised her to take it in person to Richmond. She was then quite sick and unable to leave home, but as soon as her physician would allow her to travel, which was in the early spring, she brought the will to Richmond, where it was offered for probate on April 10, 1914.
"After notice to the Rev. John M. Pilcher, the father, sole heir and next of kin of E. M. Pilcher, deceased, as provided by law, and upon an issue of devisavit vel non, both parties waiving a jury, the court heard the evidence, and admitted the said paper to probate as the will of E. M. Pilcher by order entered on the 9th day of June, 1914, from which order this appeal has been taken.
