Smith's Ex'r v. Houseman 1

• Decision Date: 22 December 1894
• Parties: SMITH'S EX'R . v. HOUSEMAN et al.1
• Court: Virginia Supreme Court

20 S.E. 830

90 Va. 816

SMITH'S EX'R .

v.HOUSEMAN et al.¹

Supreme Court of Appeals of Virginia.

Dec. 22, 1894.

Will—What Constitutes—Revocation — Claim against Estate—Testimony of Widow— Appeal by Administrator.

1. S. executed the following paper: "$1.000.00. This article is to certify that, if E. survive me, I bequeath him $1,000 of my property, free from any lien or incumbrance, "—and sealed and signed it. E. was an orphan, living with S., when the above was written, but subsequently left. Afterwards S. executed a will disposing of all his property, but made no mention of the above or of E. Held, that the first writing was a will, and was revoked by the subsequent will.

2. Where a paper in the form of a will is attempted to be established as a contract, the widow of the one who executed it is incompetent to testify as to the value of the services rendered by the beneficiary.

3. A contract to make a provision for another by will must be established by clear and convincing evidence.

4. One who appeals in his capacity as administrator cannot have a decree against him as an individual reviewed.

5. Personal estate is the natural and primary fund for the payment of debts, and must first be exhausted before the real estate can be made liable; nor will it be exonerated by a charge on the real estate, unless there be express words or a plain intent in the will to make such exoneration.

Appeal from circuit court, Botetourt county.

Bill by Smith's executor against one Houseman and others to obtain the construction of a will. Prom the decree rendered by the circuit court, complainant appeals. Modified.

Benj. Haden, for appellant.

C. M. Lunsford, for appellees.

LEWIS, P. On the 1st day of June, 1888, Henry E. Smith executed the following paper, to wit: "$1,000.00. This atricle is to certify that, if Elliott Smith survive me, I bequeath him one thousand dollars of my property, free from any lien or incumbrance. To the above bequest I hereunto set my hand and seal, this first day of June, 1888. [Signed] Heniy E. Smith. [Seal]." Elliott Smith was an orphan boy, between seven and eight years of age, at the time of the execution of this paper, and a member of Henry E. Smith's family. On the 2d day of December, 1889, Henry E. Smith executed a will, whereby he disposed of his entire estate, real and personal, without in any way referring either to Elliott Smith, or to the paper just mentioned. He died in February, 1891, soon after which his will was duly admitted to probate. The bill was filed by the executor for a construction of the will and an administration of the estate; and the first question to be determined is as to the nature and effect of the paper writing of June 1, 1888.

By the decree complained of, the circuit court adjudged it to be a valid contract, to be treated as though it were a general pecuniary legacy in the testator's last will and testament. Upon careful consideration, we are unable to concur in this view. There is no element of contract about it; and the evidence returned by the master with his report fails to establish a contract The paper was evidently intended as a will, which was revoked by the subsequent incompatible will, disposing of the whole estate....