Wilroy v. Halbleib
| Decision Date | 14 January 1974 |
| Parties | Robert G. WILROY v. Raymond W. HALBLEIB. |
| Court | Virginia Supreme Court |
Robert G. Winters, Norfolk (White, Reynolds, Smith & Winters, Norfolk, on brief), for plaintiff in error.
Harry J. Hicks, Norfolk (John Joseph Baecher, Norfolk, on brief), for defendant in error.
Before SNEAD, C.J., and I'ANSON, HARRISON, COCHRAN, HARMAN and POFF, JJ.
I'ANSON, Justice.
Robert G. Wilroy filed in the court below a petition for the Inter partes probate of several writings allegedly signed by Rose M. Halbleib, deceased, as her last will and testament. A jury was impaneled to ascertain which, if any, of the writings, including a writing dated March 1, 1960, in which Wilroy was the principal beneficiary, should be admitted to probate as decedent's will.
After considering the evidence and instructions of the court, the jury returned a verdict finding that the writing dated March 1, 1960, purporting to have been signed by Rose M. Halbleib, 'is not the valid will of Rose M. Halbleib.'
Judgment was entered on the jury's verdict and, in the same order, the court overruled Wilroy's motion to require the administrator of the decedent's estate to surrender to him certain United States Savings Bonds which were payable to him upon the death of Rose M. Halbleib. We granted Wilroy an appeal.
Wilroy contends that the trial court erred (1) in permitting the contestant, Raymond W. Halbleib, to present to the jury inconsistent and contradictory contentions that the purported signatures of Rose M. Halbleib on the writing dated March 1, 1960, and the carbon copy thereof, were forgeries, and that the signatures thereon had been obtained by undue influence; (2) in not sustaining his motion to strike Halbleib's evidence on undue influence and forgery because the evidence was insufficient to submit those issues to the jury and (3) in not directing the administrator of decedent's estate to deliver to him certain United States Savings Bonds.
The evidence shows that Rose M. Halbleib died on March 30, 1971, seised and possessed of real and personal property located in the City of Norfolk. She was survived by her husband, Raymond W. Halbleib, who qualified as administrator of her estate.
After Halbleib qualified on the estate, he discovered in his wife's safe deposit box the following paper writings which he lodged in the clerk's office:
(1) A typewritten instrument, dated March 1, 1960, devising and bequeathing to her nephew, Robert G. Wilroy, the principal portion of her estate. There was no provision for her surviving husband. This document carried the purported signature of 'Rose M. Halbleib.' It also carried the signatures of three subscribing witnesses: Edward D. Hurd, Charlotte B. Hurd, and Albi P. Brewster;
(2) A carbon copy of the March 1, 1960, instrument, which bore the purported signature of Rose M. Halbleib and the signatures of the above three attesting witnesses;
(3) A holographic document, dated January 1, 1970, signed by Rose M. Halbleib, giving $1,000 to Epworth United Methodist Church; and body be placed in a mausoleum which she January 3, 1970, entitled 'Amendment #1,' signed by Rose M. Halbleib, which directed that her husband should have her half interest in their home and that her body be placed in a manusoleum which she had erected.
Edward D. Hurd testified that he wrote the typewritten document dated March 1, 1960, at the request of Rose M. Halbleib; that although he was not an attorney and had no legal training, he charged Mrs. Halbleib $5.00 for writing the will; that Rose M. Halbleib signed both the original and carbon copy of this document in his presence and in the presence of the other two attesting witnesses, one of whom, Albi P. Brewster, had since died; and that after the documents had been thus signed he handed them to Rose M. Halbleib.
Charlotte B. Hurd, one of the attesting witnesses, testified that Rose M. Halbleib signed both the original and carbon copy of the purported will in her presence and in the presence of the other attesting witnesses.
Mattie Wilroy, mother of the petitioner, Robert G. Wilroy, and sister-in-law of the decedent, testified that the signatures on the two typewritten documents were the true signatures of Rose M. Halbleib. She went with Rose Halbleib to Hurd's home when Rose discussed with Hurd the preparation of her will, but she was not in the room with them and did not know how decedent's will 'was made up.' Rose and her nephew thought a 'great deal' of each other.
Kathleen McGowan, who worked with Rose M. Halbleib in a department store for many years, testified that Rose was opinionated, adamant in her views, and mentally capable.
Raymond W. Halbleib, the widower of Rose M. Halbleib, testified that he and the decedent were married and had lived together for more than 27 years, except for a short period during which they were separated. He was well acquainted with the handwriting and signature of his wife, and said that the signatures on the typewritten document, and the carbon copy thereof, dated March 1, 1960, were not her signatures. He compared those purported signatures with his wife's signatures on checks and other instruments which he knew she had signed, and pointed out differences which, he said, showed him that the signatures on the two typewritten documents were not those of his wife. He said that the two holographic documents found in the safe deposit box were in his wife's handwriting.
Halbleib also testified that Mattie Wilroy had from time to time shown an interest in the financial affairs of the Halbleib family and frequently attempted to tell Rose what disposition she should make of her estate. This, Halbleib testified, indicated to him that Mattie Wilroy had 'complete control' over his wife. He said, however, that his wife was strong-willed and opinionated.
Wilroy contends that the trial court erred in permitting the contestant, Halbleib, to present to the jury mutually exclusive and contradictory defenses of undue influence and forgery. He relies on the rule stated in Burch v. Grace Street Bldg. Corp., 168 Va. 329, 340, 191 S.E. 672, 677 (1937), that a party will not be permitted 'to assume successive positions in the course of a suit, or series of suits, in reference to the same fact or state of facts, which are inconsistent with each other, or mutually contradictory.'
The doctrine is in the nature of estoppel and is a positive rule of procedure based on manifest justice, and on considerations of orderliness, regularity, and expedition in litigation. It prevents litigants from 'playing fast and loose' with courts. Rohanna v. Bazzana, 196 Va. 549, 553, 84 S.E.2d 440, 442 (1954).
Wilroy's reliance on the doctrine in the present case is misplaced. The doctrine estops a litigant from taking a position directly contrary and inconsistent with one which he has previously assumed, either in the course of litigation for the same...
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