Pitman v. Rutledge

• Decision Date: 26 November 1956
• Docket Number: No. 4588,4588
• Citation: 198 Va. 567,95 S.E.2d 153
• Parties: LORRAINE F. PITMAN AND GEORGE M. COLES v. FRANCES GRAHAM RUTLEDGE, ET AL. Record
• Court: Virginia Supreme Court

Page 153

95 S.E.2d 153

198 Va. 567

LORRAINE F. PITMAN AND GEORGE M. COLES v. FRANCES GRAHAM RUTLEDGE, ET AL.

Record No. 4588.

Supreme Court of Appeals of Virginia

November 26, 1956.

Thomas J. Michie, for the appellants.

John S. Battle (C. Venable Minor, on brief), for the appellees.

JUDGE: BUCHANAN

BUCHANAN, J., delivered the opinion of the court.

The executors of the will of Miss Charlotte B. Coles brought this suit for the purpose of having the will and a codicil thereto construed. Lorraine F. Pitman and George M. Coles, executors, were also legatees in their own right and being disappointed by the court's construction, which deprived them of their legacy, they prosecute this appeal. The appellees are the children of Mrs. Charles J. Graham, to whom the testatrix gave by the codicil, so the court held, the tangible personal property which she had previously given to the appellants by the will.

The will of Miss Coles was a typewritten document dated May 31, 1949, and probated March 17, 1954. It was prepared by her attorney, George M. Coles, and in twelve separate clauses designated by Roman numerals disposed of her entire estate, which was appraised at $186,091.65, composed as follows: Real estate, $34,000, being her residence property; tangible personal property (so called in the appraisement and consisting of furniture and furnishings in the residence), $7,914.50; farm machinery, $317.50; miscellaneous personalty, $1,315 (the main item of which was an automobile at $1,230); jewelry, $1,539.25; silverware, $897.50; money, $8,839.73; stocks and bonds, and accrued dividends, $131,268.17.

The will devised this property as follows:

Clauses I, II, III and IV provided for the payment of debts and taxes, and gave to named legatees a chain of colored stones, a diamond ring and a chest, mourning pin and marriage certificate.

Clause V: 'All the rest and residue of my tangible personal property I give and bequeath to Lorraine F. Pitman, of Darien, Connecticut, and George M. Coles, of Charlottesville, or the survivor of them.'

Clause VI gave $1,000 to a cemetery association; Clause VII gave $50,000 to trustees on specified trusts; Clause VIII gave $1,000 to a church; Clauses IX and X gave $10,000 each to two legatees; Clause XI gave 'Woodville,' which was her home, to Lorraine F. Pitman, charging it with the payment of legacies in Clauses VI through X; and Clause XII gave 'All the rest and residue of my property, real, personal and mixed,' to the Virginia Association of Workers for the Blind, Inc. Clause XIII provided that if the estate was insufficient to pay all legacies they should have priority in the order set out; and Clause XIV appointed the executors.

After the will was probated there was discovered and on May 5, 1954, admitted to probate as an additional testamentary paper an instrument written by Miss Coles on a sheet of note paper, as follows:

OE'If any thing should happen to me I leave all of my personal property to Mrs. Charles J. Graham. The Virginia Historical Society can take any furniture or china they want. but nothing is to be sold at auction.

Charlotte B. Coles

OEApril 19th 1950 My will that I have made is to be carried out first.

C. B. Coles'

Mrs. Charles J. Graham, named in this writing, died before the death of Miss Coles. She lived in Pittsburgh, had visited Miss Coles and they were good friends. Her children, the appellees, in their answer to the complainants' bill claimed that under this writing their mother became entitled to the personal property of Miss Coles except such as was specifically bequeathed to others by Clauses II, III, IV, VI, VII, VIII, IX and X of the will as above referred to.

At the same time as this writing was discovered, and in the same bureau drawer, there was found a typewritten document signed by Charlotte B. Coles and after her signature the date of June 10, 1950, under which were the words 'I have typed this myself,' and signed 'C. B. Coles.' This document was headed 'I wish my things disposed of in the following way.' In the first paragraph she set out what she wanted done with the furnishings at 'Woodville,' and in the rest of the document she said she wanted given to named donees certain designated items, consisting of portraits, bed, diamonds, watches and pieces of silver, but nothing was to be sold at auction. The concluding paragraph was: 'I would like to make Marion Pitman my residuary legatee and have her dispose of the remaining things in any way that she sees fit except by Auction.'

This writing was in an envelope inscribed apparently in the handwriting of Miss Coles: 'Charlotte B. Coles Addition To My Will.'

Probate of this document was refused by the court by the order of May 5, 1954, because not witnessed and there was no evidence that it was in existence at the time of the writing on the envelope. Over objection it was introduced in evidence at the oral hearing before the court in the present suit. At that hearing George M. Coles, the draftsman of the will, testified that the tangible personal property described in Clause V of the will was bequeathed to him and Pitman, with an understanding, a moral obligation on him, to distribute it in accordance with any memorandum that Miss Coles left to tell him how to do it. There was evidence also that Miss Coles had no relatives closer than the children of her first cousins, the appellant Pitman being a son of a first cousin and the appellant Coles being a third cousin. Miss Coles had an aversion to auction sales and a neighbor had heard her say that she did not want 'her things' handled or owned by people in the neighborhood.

By the decree appealed from the court held, in accordance with the contention of the appellees, that the codicil of April 19, 1950, was intended to and did revoke Clause V of the will, and that the tangible personal property other than that expressly disposed of in the will was bequeathed to Mrs. Charles J. Graham, subject to the right of the Virginia Historical Society to take any furniture or china. The appellants contend that the writing of April 19, 1950, constituted two codicils which were completely irreconcilable and that the second nullified the first, leaving the will in effect unchanged.

The writing of June 10, 1950, which was refused probate as stated, was not admissible evidence if looked upon as a declaration of intention by the testatrix. Smith v. Trustees of the Baptist Orphanage, 194 Va. 901, 75 S.E.2d 491. In addition, it was not admissible and could not be of aid in the construction of the will because it was only an attempted subsequent disposition of some of the property previously given to others by the instruments which were duly probated as the last will and testament of Miss Coles, which attempt was ineffectual because not executed as required by law. 57 Am. Jur., Wills, § 1040, p. 674.

What we are called upon, therefore, to construe is the original will of May 31, 1949, together with the written instrument of April 19, 1950. We think the latter constitutes one codicil, but whether one or two the result in our view is the same.

In determining the effect of these instruments we are to ascertain the intent of the testatrix from the language used, the object being to find the expressed intent; i.e., what she meant by what she wrote, Allison v. Allison's Ex'ors, 101 Va. 537, 44 S.E. 904; Baptist Home for Aged Women v. Mizell, 197 Va. 399, 89 S.E.2d 332; or 'the meaning of the words as used by the writer,' Graves 'Extrinsic Evidence in Respect to Written Instruments,' 14 Va. Law Reg. 913. When there is legitimate dispute as to the meaning thus sought, the facts and circumstances existing at the time of the writing may be looked to for aid. Coffman's Adm'r v. Coffman, 131 Va. 456, 462-3, 109 S.E. 454, 457.

Such material facts and circumstances as were developed by the vidence are referred to above. They do not afford very substantial help and the solution lies in whether the last sentence of the codicil destroys the first and leaves the situation as if the instrument of April 19, 1950, had not been written; or whether that instrument may be fairly given some effect.

The original will, as stated, disposed of the whole estate of the testatrix. Clause V gave to Pitman and Coles all the rest and residue of her tangible personal property left after satisfying the four preceding clauses. Coles testified that this tangible personal property was left to them outright, with an understanding in the nature of a moral obligation that it was to be distributed in accordance with a memorandum to be prepared by the testatrix. Some ten months after the date of the will she wrote the paper of April 19, 1950, and put it in an envelope addressed to Coles. The original of this instrument is before us. Its appearance is convincing that the date April 19, 1950, was written as the date of what she had just written and signed; and it is persuasive that the sentence immediately under that date was written and signed at the same time. In the first sentence she left all of her personal property to Mrs. Graham. In the next sentence she said the Virginia Historical Society could take any furniture or china they wanted. In the next she added that nothing was to be sold at auction. Then she signed her name and wrote the date. Immediately under the date she wrote: 'My will that I have made is to be carried out first' and signed again by the abbreviated signature 'C. B. Coles'.

It is not illogical to conclude that after she had signed her name to what she had first written the thought came to her that by the will she had made she had given some of this personal property to others, as she in fact had in Clauses II, III, and IV, and had likewise given to others all of her intangibles and real estate. It is true that in Clause V she had given to Pitman and Coles all the rest of her tangible personal property that remained after the preceding bequests; but that had been...