Powell v. Holland

• Citation: 299 S.E.2d 509,224 Va. 609
• Decision Date: 21 January 1983
• Docket Number: No. 801168,801168
• Parties: Wilma POWELL, et al. v. Shirley T. HOLLAND, et al. Record
• Court: Supreme Court of Virginia

Page 509

299 S.E.2d 509

224 Va. 609

Wilma POWELL, et al. v. Shirley T. HOLLAND, et al.

Record No. 801168.

Supreme Court of Virginia.

Jan. 21, 1983.

Joshua Pretlow, Jr., Suffolk (Carl E. Eason, Jr., Pretlow, Pretlow & Moore, P.C., Suffolk, on brief), for appellants.

J. Edward Moyler, Jr., James E. Rainey, Franklin (Moyler, Moyler, Rainey & Cobb, Franklin, on brief), for appellees.

Before CARRICO, C.J., and COCHRAN, POFF, COMPTON, THOMPSON, STEPHENSON and RUSSELL, JJ.

POFF, Justice.

We are asked to review a decree which construed the will of Pattie Barnes Holland (Pattie) to devise a fee simple estate in certain real property to her husband, Hardy J. Holland (Hardy).

The subject property is an undivided 1/9 interest in the "Jones property" which Pattie inherited from Hendricks T. Jones in 1927. Pattie's holographic will, dated September 3, 1946, and admitted to probate shortly after her death in 1956, provided as follows:

I make this my last will

I give to my husband Hardy Holland my lot on the corner Linden Ae and West Wasington St Suffolk

I also give him all of my house hole and kichen furniture exsep the brases in front room they go to my sister Lizzie Pierce

I also dirck him to pay the town of Suffolk 75 dollars for petfild care Her Gum lot in semery and put up a stone in our lot I dreck him to pay 1 hunded to my church Holled baptis church in Holled if he does not espose of my propty while he living after his death it gose to my aries

I leve him my admertit without Bond

Pattie Barnes Holland

In 1980, following the death of Jones' widow, the Jones property was sold under a decree of partition. A question arose concerning distribution of that portion of the proceeds of sale attributable to the share Pattie owned. The appellees, ¹ heirs of Hardy (who had died intestate in 1958), petitioned the court for an interpretation of Pattie's will. At trial, the appellees contended that her will contained a residuary clause devising the subject property to Hardy and that the interest he took passed to them under former Code § 64-1 et seq., the laws of descent and distribution in effect when Hardy died. The appellees further argued that the remainder over to Pattie's "aries" was void and that Hardy had acquired a fee simple interest under Pattie's will.

Ruling that Pattie "intended to dispose of all of her property and did so by her will", and that her will devised Hardy a fee simple interest in the subject property, the chancellor entered a final decree awarding the funds in issue to the appellees.

Pattie's heirs at law are collateral kindred. The appellants, her heirs and certain successors in interest to her heirs, ² argue on brief that Pattie's will "does not contain a residuary clause, general or specific, and the will does not dispose of her entire estate, but only those items enumerated in the will." In such case, appellants assert, the subject property, which was not specifically devised in the will, descended to Pattie's heirs.

The parties agree that Pattie's holographic will was properly admitted to probate. They disagree whether, considering the will as a whole, the language "if he [Hardy] does not espose of my propty while he living after his death it gose to my aries" constitutes a testamentary disposition of all the testatrix's property not specifically devised or bequeathed in her will to others.

The dispute arises from a collision between two rules of testamentary construction. The appellees rely upon the presumption against partial or total intestacy, the appellants upon the presumption that a decedent did not intend to disinherit his heirs.

The appellants argue that "public policy would dictate" that the presumption against disinheritance should prevail. As Pattie's heirs at law, they say, they are "the natural recipients of [the] decedent's bounty"; and, to uphold the presumption against intestacy, they contend, would be to favor "strangers to Pattie Holland, i.e. the heirs of her husband, Hardy" and thus to subvert public policy fixed by statute.

But the natural object of Pattie's bounty was her husband. ³ Pattie had no direct descendants; her heirs are collateral kindred. Criticizing the presumption against disinheritance as "feudal and ... akin to the law of primogeniture", this Court has approved the principle that " '[a]s among testator's collateral relatives or strangers, favoring presumptions carry little or no weight against the testator's apparent meaning.' 1 Schouler on Wills (6th ed.), 885." Neblett v. Smith, 142 Va. 840, 850, 128 S.E. 247, 250 (1925). Hence, the appellants' public policy argument fails for want of its premise.

Yet, the appellants contend that the presumption against disinheritance must prevail in this case because the language of Pattie's will is insufficient to constitute a testamentary disposition of her residuary estate. The sufficiency standard they invoke is found in Sutherland v. Sydnor, 84 Va. 880, 881-82, 6 S.E. 480, 481 (1888), quoted with approval in M.E. Church v. Brotherton, 178 Va. 155, 160, 16 S.E.2d 363, 365 (1941):

"The law has provided a definite successor to the estate in the absence of a testamentary disposition, and the heir is not to be disinherited unless by express words or necessary implication."

See also Jones v. Brown, 151 Va. 622, 629, 144 S.E. 620, 622 (1928); Blankenbaker v. Early, 132 Va. 408, 412, 112 S.E. 599, 600 (1922).

Insisting that Pattie's will fails that test, the appellants underscore the word "necessary". They quote from Coffman v. Coffman, and al., 85 Va. 459, 461, 8 S.E. 672 (1888), where this Court said that, in order to justify a finding of disinheritance by necessary implication, "the intention of the testator must be so apparent that an intention to the contrary cannot be supposed, for otherwise the implication is not a necessary one." But the appellants overlook the Coffman court's explication of its definition. A "mere slight probability" is not a necessary implication; "[i]t must not rest upon conjecture"; but "[n]either is it required that the inference should be absolutely irresistible." Id. at 462, 8 S.E. at 673. "According to Lord Mansfield, necessary implication is that which clearly satisfies the court what the testator meant by the words he used." Id. at 461, 8 S.E. at 672.

Courts are asked to construe wills precisely because their language appears to be subject to different interpretations. If the words used are free of all doubt, a court has no occasion to determine what the author meant. When the words are arguably ambiguous, adversary parties draw conflicting inferences, perhaps colored by self-interest. The relative merits of the inferences urged must be weighed and the conflict resolved by a disinterested arbiter. A judge must determine what is only arguably implied and what is necessarily implied.

In the appellants' view, an implication is necessary only if it is absolute and preclusive of all others. Reaffirming the definition in Coffman, we reject that view. We agree with Lord Mansfield that an implication is "necessary" if the words chosen by a testator satisfy the judge asked to construe them what the testator intended.

We turn now to the presumption against intestacy upon which the appellees rely. Unlike the law in England, "[i]n America, the law does not favor intestacy; rather it favors the right of a donor to dispose of his property at death as he chooses, even if at the expense of his heirs at law." Bauserman v. DiGiulian, 224 Va. 414, ---, 297 S.E.2d 671, 674 (1982). "When a man makes a will, the presumption, in the absence of evidence to the contrary, is that he intended thereby to dispose of his whole estate. Accordingly, where two modes of interpretation are possible, that is preferred which will prevent either total or partial intestacy." Honaker v. Starks, 114 Va. 37, 39, 75 S.E. 741, 742 (1912).

The reasoning underlying this presumption is succinctly stated in McCabe v. Cary's Ex'r., 135 Va. 428, 433-34, 116 S.E. 485, 487 (1923):

The only reason anyone can have for making a will is to change the devolution of his property from that prescribed by the statutes of descent and distributions. Hence there is a strong presumption that the testator intended to dispose of his entire estate, and courts are decidedly averse to adopting any construction of a will which leaves a testator intestate as to any portion of his estate, unless compelled to do so. The judicial expositor, therefore, starts out with this presumption. [Citation omitted.]

Accord, Baptist Home v. Mizell, Adm'r, 197 Va. 399, 404, 89 S.E.2d 332, 335 (1955); Arnold v. Groobey, 195 Va. 214, 224, 77 S.E.2d 382, 387 (1953); Bradshaw v. Bangley, 194 Va. 794, 801, 75 S.E.2d 609, 613 (1953); Neblett v. Smith, 142 Va. at 847, 128 S.E. at 249; Prison Association v. Russell, 103 Va. 563, 576-77, 49 S.E. 966, 971 (1905); Gallagher & Als. v. Rowan's Adm'r & Als., 86 Va. 823, 825-26, 11 S.E. 121, 122 (1890).

The two rules of construction invoked by the parties rest upon presumed intent. Both are derivative of and accessory to the paramount rule of testamentary construction, viz., that courts must give effect to what appears to be the intention of the testator unless to do so would offend some rule of law.

All rules with reference to wills, however, are subject to this, that the underlying principle always is that in the construction of wills the intention of the testator, if it is legal and can be determined, is controlling. All of the refinements of the law must yield to the power of the testator to dispose of his property as he desires. When this intention, which is the guiding star, is ascertained and can be made effective, the quest is ended and all other rules become immaterial.

Wornom v. Hampton N. & A. Inst., 144 Va. 533, 541, 132 S.E. 344, 347 (1926) (citation omitted).

In our examination of the language Pattie chose to express her intention, we find a passage from an old case instructive:

In the...