Teubert's Estate, In re

• Citation: 171 W.Va. 226,298 S.E.2d 456
• Decision Date: 01 December 1982
• Docket Number: No. 15546,15546
• Parties: , 37 A.L.R.4th 515 In re the ESTATE OF C.J. TEUBERT, Deceased.
• Court: Supreme Court of West Virginia

Page 456

298 S.E.2d 456

171 W.Va. 226, 37 A.L.R.4th 515

In re the ESTATE OF C.J. TEUBERT, Deceased.

No. 15546.

Supreme Court of Appeals of West Virginia.

Dec. 1, 1982.

Syllabus by the Court

1. W.Va.Code, 41-1-3, provides that holographic wills are valid in this State if they are wholly in the handwriting of the testator and signed. The third and final requirement for a valid holographic will in our jurisdiction is that the writing must evidence a testamentary intent.

2. Where a holographic will contains words not in the handwriting of the testator, such words may be stricken if the remaining portions of the will constitute a valid holographic will.

3. "Technical words are not necessary in making testamentary disposition of property; any language which clearly indicates the testator's intention to dispose of his property to certain persons, either named or ascertainable, is sufficient." Syllabus Point 1, Runyon v. Mills, 86 W.Va. 388, 103 S.E. 112 (1920).

4. Where the words of a will are ambiguous as to testamentary intent, extrinsic evidence is admissible to prove the testator's intent.

5. "The findings of fact of a trial court are entitled to peculiar weight upon appeal and will not be reversed unless they are plainly wrong." Syllabus Point 3, Mundy v. Arcuri, 165 W.Va. 128, 267 S.E.2d 454 (1980).

6. It is generally recognized that even though a will is sufficient in its formal prerequisites, it may fail if its terms are too vague and uncertain to enforce.

7. The modern tendency is not to hold a will void for uncertainty unless it is absolutely impossible to put a meaning upon it. The duty of the court is to put a fair meaning on the terms used and not, as it is sometimes put, to repose on the easy pillow of saying that the whole is void for uncertainty.

8. The law favors testacy over intestacy.

9. A "mixed trust" is usually defined as one which possesses private and public elements and is partly charitable and partly for the benefit of private individuals or non-charitable objects. It is not objectionable to have a mixed trust as such.

10. The objectionable characteristic of a mixed trust having both charitable and non-charitable purposes, is not due to the commingling of purposes. The objectionable characteristic occurs when the charitable portion of the trust is invalid for some reason or another, or the private portion of the trust is invalid for some reason or another, and the two trusts cannot be separated and individually enforced.

11. The enactment of W.Va.Code, 35-2-2 (1931), considerably broadened our statutory doctrine of cy pres by declaring that no conveyance, devise, dedication, gift, grant or bequest to a charitable trust shall fail or be declared void for insufficient designation of the beneficiaries in, or the objects of, any trust or for any failure to name or appoint a trustee.

Menis E. Ketchum, Greene, Ketchum, Mills, Bailey & Tweel, Bliss L. Charles, Huntington, for Admrs.

James W. St. Clair, Marshall & St. Clair, Huntington, for Beneficiaries.

James Allen Colburn, Baer & Colburn, L.C., Huntington, for James H. & Alice Teubert Foundation, intervenor.

W. Merton Prunty, Huntington, for the Cabell-Wayne Ass'n of the Blind, Inc., intervenor.

MILLER, Chief Justice:

This case involves the validity of a holographic writing made by C.J. Teubert. Two primary questions are presented: (1) whether certain typewritten words render the entire will invalid, and (2) whether the will demonstrates a testamentary intent and an understandable dispositionary plan. The trial court held the will valid and we affirm.

Mr. Teubert died a bachelor with no close relatives. He was shown to be an extremely frugal and shrewd postal employee. During his lifetime he had accumulated assets of approximately three million dollars. He enjoyed good health until February 11, 1979, when he was struck by an automobile, and he died three days later at the age of 91.

Upon Teubert's death, the writing in question was found among his personal papers. [See Appendix A.] The writing was wholly in the deceased's handwriting, with the exception of several typewritten lines located near the top and to the left of the page, which read, "(Revolking [sic] all writings or wills heretofore made by C.J.Teubert) All this for TRUST DEPT., First-Huntington Nat'l.Bk. Huntington,W.Va." Above the typewritten portion was handwritten, "Last Will, Etc. 9/1/71," and below the typewriting was the remaining handwritten portion which began "Pay just debts & funeral Ex."

The writing devised certain real property to the Jehovah's Witnesses, directions for the creation of the "James H. & Alice Teubert Foundation," and directions to the Foundation as to disbursements. The writing was signed at the bottom by the deceased, and one portion relating to free rent for certain tenants of the deceased was lined off and marked out with X's. Beside the marked-out provision was written "Void" and the deceased's signature.

The Cabell County Commission refused to probate the writing as the Last Will & Testament of the deceased, and also refused to probate a separate unsigned codicil. The proponents of the will appealed to the Circuit Court of Cabell County, and the court, sitting without a jury, held that the will was a valid holographic will, that the typewriting on the will was surplusage, and that the writing would be admitted to probate. The appellants, the heirs-at-law of C.J. Teubert, appealed.

I. The Validity of the Holographic Will

A. Wholly In The Handwriting

W.Va.Code, 41-1-3, ¹ provides that holographic wills are valid in this State if they are wholly in the handwriting of the testator and signed. The third and final requirement for a valid holographic will in our jurisdiction is that the writing must evidence a testamentary intent. In Syllabus Points 4 and 5 of In Re: Estate of Briggs, 148 W.Va. 294, 134 S.E.2d 737 (1964), we elaborated on this third requirement as follows:

"4. In determining whether a writing in the form of a letter discloses an intent that it be operative as a holographic will, it is proper to consider whether the writing expresses merely an intent to make a will in the future; and also whether the language relied upon as being testamentary in character constitutes the principal portion, or an important portion of the letter, or whether, on the contrary, such language is merely casual in nature.

"5. If a writing in the form of a letter appears on its face to be ambiguous in respect to the question of the presence or absence of a testamentary intent, extrinsic evidence may be admitted in relation to that question."

See also Rice v. Henderson, 140 W.Va. 284, 83 S.E.2d 762 (1954); Black v. Maxwell, 131 W.Va. 247, 46 S.E.2d 804 (1948).

The appellants initially argue that the typewritten lines operate to void the will for not being "wholly in the handwriting of the testator," while the appellees assert the correctness of the lower court's ruling that the typewritten lines are "surplusage" and do not affect the will. Under the surplusage theory, nonhandwritten material in a holographic will may be stricken with the remainder of the instrument being admitted to probate if the remaining provisions make sense standing alone. See 2 Bowe-Parker, Page on Wills § 20.5 at 288 (1960). This rule has been stated in In re Lowrance's Will, 199 N.C. 782, 785, 155 S.E. 876, 878 (1930):

"When all the words appearing on a paper in the handwriting of the deceased person are sufficient ... to constitute a last will and testament, the mere fact that other words appear thereon, not in such handwriting, but not essential to the meaning of the words in such handwriting, cannot be held to defeat the intention of the deceased, otherwise clearly expressed, that such paperwriting is and shall be his last will and testament.... The words in print appearing on the sheets of paper propounded in the instant case, are surplusage."

See also Pounds v. Litaker, 235 N.C. 746, 747-48, 71 S.E.2d 39, 40 (1952); In Re Will of Parsons, 207 N.C. 584, 587, 178 S.E. 78, 80 (1935).

The Virginia Supreme Court has interpreted its holographic will statute, which also requires that such a will be "wholly in the handwriting of the testator," and has determined that the law is satisfied if the handwritten part, without the nonhandwritten part, is "complete and entire in itself." Gooch v. Gooch, 134 Va. 21, 29, 113 S.E. 873, 876 (1922). See also Bell v. Timmins, 190 Va. 648, 58 S.E.2d 55 (1950); Moon v. Norvell, 184 Va. 842, 36 S.E.2d 632 (1946). The Virginia court declined to find that "wholly" was used in its "absolute, utter and rigidly uncompromising sense." Bell v. Timmins, 190 W.Va. at 655, 58 S.E.2d at 59. In Bell, the court was confronted with a holographic will upon which a well-meaning friend of the testator had printed certain words to clarify the testator's handwritten language. The court concluded that the testator's language standing alone was sufficient to create a valid holographic will.

The surplusage rule has been adopted in a number of jurisdictions. E.g., In Re Estate of Schuh, 17 Ariz.App. 172, 496 P.2d 598 (1972); In Re Estate of Morrison, 55 Ariz. 504, 103 P.2d 669 (1940); Estate of Black, 30 Cal.3d 880, 641 P.2d 754, 181 Cal.Rptr. 222 (1982); In Re Estate of Durlewanger, 41 Cal.App.2d 750, 107 P.2d 477 (1940); Fairweather v. Nord, 388 S.W.2d 122 (Ky.1965); Heirs of McMichael v. Bankston, 24 La.Ann. 451 (1872); Baker v. Brown, 83 Miss. 793, 36 So. 539 (1903); In Re Bennett's Estate, 324 P.2d 862 (Okl.1958); In Re Estate of Jones, 44 Tenn.App. 323, 314 S.W.2d 39 (1957); Maul v. Williams, 69 S.W.2d 1107 (Tex.Com.App.1934); Estate of Robinson, 20 Wis.2d 626, 123 N.W.2d 515 (1963); 79 Am.Jur.2d Wills § 707 n. 84 (1975); Annot., 89 A.L.R.2d 1198, 1207-10 (1963).

The purpose behind statutory recognition of holographic wills is to enable those persons who are unable or unwilling to secure the assistance of counsel to make a valid will in...