Robinson v. Ward, 881350

• Decision Date: 12 January 1990
• Docket Number: No. 881350,881350
• Citation: 387 S.E.2d 735,239 Va. 36
• Parties: Patricia T. ROBINSON v. Katherine D. WARD, et al. Record
• Court: Virginia Supreme Court

Page 735

387 S.E.2d 735

239 Va. 36

Patricia T. ROBINSON v. Katherine D. WARD, et al.

Record No. 881350.

Supreme Court of Virginia.

Jan. 12, 1990.

Jay T. Swett (Helen M. Snyder, McGuire, Woods, Battle & Boothe, Charlottesville, on briefs), for appellant.

Phillip D. Payne, IV (John P. Grove, Roanoke, Richard F. McPherson, Staunton, Kay Heidbreder, Blacksburg, Woods, Rogers & Hazlegrove, Roanoke, Nelson, McPherson, Summers & Santos, Staunton, on brief), for appellees Katherine D. Ward, Administratrix, Virginia Polytechnical Institute and State University, and Boys' Home, Inc.

No briefs or arguments for appellees Angeline Tannehill Bullerjahn, Deborah Sinclair Black Reed and Graham S. Black, II.

Present: CARRICO, C.J., COMPTON, STEPHENSON, RUSSELL, WHITING and LACY, JJ., and HARRISON, Retired Justice.

COMPTON, Justice.

In this attack on the validity of a will, we determine whether the trial court erred in ruling there was compliance with the statutory mandate of Code § 64.1-49 requiring a witness to "subscribe the will."

The statute provides, as pertinent, that a testator's signature to a non-holographic will "shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary."

This proceeding commenced when one of the heirs of Joane G. Tannehill, deceased, filed an application for appeal as a matter of right, pursuant to Code § 64.1-78, from the probate of the will of the deceased. Subsequently, other heirs of Tannehill appeared as parties to contest the will, including appellant Patricia T. Robinson. The application stated that the "execution and/or attestation of said will did not comply" with the statutory requirements, thus invalidating the will.

Appellees Katherine D. Ward, individually and as administratrix of the decedent's estate; Virginia Polytechnic Institute and State University; and Boys' Home, Inc. (collectively, proponents) appeared in opposition to the application. They asserted that the document in question was a valid will and that its probate should be upheld.

Following an ore tenus hearing, at which only the proponents presented evidence, the trial court upheld the validity of the document as the last will and testament of the deceased. We awarded the contestant this appeal from the September 1988 judgment order.

The facts are undisputed. Prior to her death, Tannehill, who was not married, resided in Staunton and on her 75-acre farm near Deerfield, where she grew and sold Christmas trees. Appellee Ward, a close friend of Tannehill, moved to the farm several days before the events in question to assist her in the operation of the business.

During the morning of May 18, 1986, Tannehill, 52 years of age and apparently in good health, became ill with "a violent headache." Shortly, Tannehill directed Ward to obtain "a legal pad." Tannehill stated: "Write exactly what I say, and do not interrupt me." As Tannehill dictated, Ward wrote by hand with a pencil on a page of the pad.

The writing follows, complete with spelling and other errors:

"To Katherine D. Ward I leave everything I own for her life time. She is to maintain the farm & provide employment for Penny Guin for as long as Penny cares to stay.

"I would hope that Katherine can maintain the farm & herself with the income from the farm & interest on my principal. At her death, the principal that is left is to be used as an endowment as maintaing this farm, which I wish to go to Covington Boys Home. The farm is to used by them as a teaching facility. If they do not wish to use it that way than the entire request is to go to VPI to be used in the same manner."

After Ward "finished writing the will," Tannehill "read it over, signed her name, dated it [May 18, 1986]," and "handed it back" to Ward. She placed the document on a table in Tannehill's bedroom, where the events in question occurred.

After trying unsuccessfully to reach several local physicians, Ward was directed by Tannehill to call a friend, Colonel George A. Knudson, a retired Marine and a member of the local rescue squad. Upon arrival, Knudson took Tannehill's blood pressure, which "was rather high."

Tannehill then told Knudson that she had dictated her will to Ward and asked him to "please read it and witness it--which he did." Present in the room at the time were Tannehill, Ward, and Knudson. The following appears on the lower left portion of the document:

"Witness

George A. Knudson

May 18, 1986"

The will again was placed on the bedside table.

Tannehill took some medication and "a short time after that, she kind of cried out, her body jerked, she lost control, and she was unconscious." She was rushed to a Staunton hospital and, shortly after noon on May 18, was flown to a Charlottesville hospital where she remained in a coma.

Distraught by the grave condition of her friend, Ward "felt" that she needed "legal advice" to determine what she "should do step-wise for Joane or anything." With the aid of her sister, Ward contacted a Maryland attorney on May 19 who "said that he felt that in Virginia there should be two witnesses--two witness signatures on the will." The attorney suggested that Ward sign "on the bottom" and have Ward's "name witnessed."

On May 19, Ward returned to the farm and signed the document in the presence of Gwin, the farm employee. Ward signed below Knudson's signature and Gwin signed on the lower right portion. Both affixed the date "May 18, 1986" under their signatures. When asked why the date of May 18, instead of May 19, was written, Ward testified that she "was extremely upset" and that she "just picked up what was on the will." She stated, "I wasn't even thinking what day of the month or year it was." She said, "there was no evil intent or anything on my part."

The testatrix died later on May 19 without regaining consciousness. The document was probated subsequently by the clerk of the court below as the deceased's last will and testament.

In a letter opinion sustaining the validity of the will, the trial court made the following findings.

"In this case there is no question, but that the writing expressed the testamentary intent of Joane G. Tannehill. That is conceded by all parties. The testatrix was a well educated and very intelligent person. At all times she was a strong willed individual and was in full control of her mental faculties. At age 52, she was enjoying good health, and had no reason to expect to die. Her only problem was anxiety caused by the unexpected death of her fiance ten days before. She clearly had the capacity to make a will, and she expressed her testamentary intentions in the document which she dictated. When she completed her dictation, she took it, reviewed it, and then signed and dated it. She clearly recognized the accuracy of the transcription of her dictation and accepted it as the authentic expression of her testamentary intentions. This was done in the presence and with the knowledge of Katherine Ward, a person in whom she placed great trust and confidence."

Accordingly, the court ruled that Ward's name appearing in the first sentence of the document "constitutes a sufficient compliance with prerequisites of the Statute of Wills to permit the document to be admitted to probate." The court said: "Even though the name appearing in the first sentence was not made as a signature, it does link the second witness with the writing and its execution, and it does identify her with it." The court concluded: "The words 'Katherine D. Ward' written by her while not a signature when made were sufficient subscription under the unique facts of this case to constitute satisfactory compliance" with the statute in question.

On appeal to this Court, the contestant argues the trial court erred "in holding that the appearance of a witness's name on the first line of a will written by the witness is sufficient subscription to constitute satisfactory compliance" with Code § 64.1-49. The contestant maintains that there is "no compliance with the Will statute where the second witness does not subscribe the will as a witness." The contestant says: "When Katherine Ward wrote her name on the first line of the will at the direction of Joane Tannehill, she neither signed nor subscribed the will. When Katherine Ward placed her name on the first line, she merely wrote her name as a beneficiary of the estate." According to the contestant, "while Virginia law requires no formal attestation clause for a subscribing witness ..., it does require that one who takes the solemn step of subscribing a will as a witness to the fact that the will has either been signed or acknowledged in her presence must do so with the intention of acting as a witness." We do not agree that the trial court erred.

The purpose of the statute in requiring subscription of a will by competent witnesses in the presence of the testator is to prevent fraud, deception, mistake, and the substitution of a surreptitious document. Ferguson v. Ferguson, 187 Va. 581, 591, 47 S.E.2d 346, 352 (1948). These requirements, however, "are not intended to restrain or abridge the power of a testator to dispose of his property. They are intended to guard and protect him in the exercise of that power." French v. Beville, 191 Va. 842, 848, 62 S.E.2d 883, 885 (1951). The safeguards of the statute "are not designed to make the execution of wills a mere trap and pitfall, and their probate a mere game." Bell v. Timmins, 190 Va. 648, 657, 58 S.E.2d 55, 59 (1950).

Accordingly, and while the statute must be strictly followed, it is vital that the provisions not be construed in a manner which would "increase the difficulty of the transaction to such an extent as to practically destroy" the right of the uninformed lay person to dispose of property by will. Savage v. Bowen, 103 Va. 540, 546, 49 S.E....