Womble v. Gunter, s. 4584

• Decision Date: 26 November 1956
• Docket Number: 4585,Nos. 4584,s. 4584
• Court: Virginia Supreme Court
• Parties: MARY WOMBLE, ET AL. v. BENJAMIN T. GUNTER, JR., ET AL., ETC., ET AL. LAFAYETTE H. PARRAMORE, SR., ET AL. v. BENJAMIN T. GUNTER, JR., ET AL., ETC., ET AL. Record

Page 213

95 S.E.2d 213

198 Va. 522

MARY WOMBLE, ET AL. v. BENJAMIN T. GUNTER, JR., ET AL., ETC., ET AL.

LAFAYETTE H. PARRAMORE, SR., ET AL. v. BENJAMIN T. GUNTER, JR., ET AL., ETC., ET AL.

Record Nos. 4584, 4585.

Supreme Court of Appeals of Virginia

November 26, 1956.

Thomas L. Woodward (Clarence E. Hodges; Mears & Mears, on brief), for appellants, Womble, et al.

J. Brooks Mapp (William King Mapp; Mapp & Mapp, on brief), for appellees, Gunter, et al.

Thomas N. Downing; W. G. Mordecai (Newman, Allaun & Downing; Mordecai, Mills & Parker, on brief), for appellants, Parramore, et al.

J. Brooks Mapp; Thomas L. Woodward (William King Mapp; Clarence E. Hodges; Mapp & Mapp; Mears & Mears, on brief), for appellees, Gunter, et al.

JUDGE: HUDGINS

HUDGINS, C.J., delivered the opinion of the court.

George F. Parramore, Sr., died testate on June 4, 1945. His somewhat complicated will, including five codicils, was duly probated and Benj. T. Gunter, Jr., and Quinton G. Nottingham qualified as executors. The testator devised and bequeathed all of his property in various amounts and proportions to his ten living children and numerous grandchildren.

On May 16, 1947, all the legatees and devisees of the testator, one being named as respondent for the purpose of pleading, filed a bill in chancery attacking the validity of the will on the ground of mental incompetency of the testator. The issue devisavit vel non was tried in September, 1950, and resulted in a mistrial. A final decree dismissing the suit was entered on March 26, 1952, the effect of which makes the validity of the will unquestionable.

Benj. T. Gunter, Jr., and Quinton G. Nottingham, as executors of the estate of the testator, filed the bill in this cause alleging, among other things, that all of the thirty children and grandchildren of the testator named as beneficiaries in the will, except Lafayette H. Parramore, J. Morrison Parramore, Lafayette H. Parramore, Jr., Jacqueline P. Phister, Sophie Faison Mitchell and Dora W. Pike, had instituted legal proceedings to contest the validity of the will and thereby had breached the condition of paragraph XIII of the will, which provided that if any one or more of the legatees or devisees should contest the will, then such contestants should forfeit any and all benefits made for him or her. The prayer of the bill was that the will be construed and the rights of all interested parties therein be determined.

Twenty-four of the named respondents filed a joint answer in which they admit that they and each of them had contested the validity of the will and alleged that the other six beneficiaries alleged in the bill to be non-contestants had in fact participated in the contest with full knowledge of their rights and obligations thereunder and of the conditions imposed by the testator.

K. Addison Jarvis, Trustee of Christ Episcopal Church of Eastville, filed an answer to the bill in which it is alleged that all of the thirty children and grandchildren named as beneficiaries in the testator's will had joined in the former suit contesting the validity of the same and had thereby forfeited all their interest in the estate of the testator, which, under the conditions stated in paragraph XIV of the will, passed to the church. This paragraph provides: 'Should all my legatees and devisees contest my will, then my entire estate shall pass to Christ Episcopal Church in Eastville.'

The six beneficiaries, Lafayette H. Parramore, J. Morrison Parramore, Lafayette H. Parramore, Jr., Jacqueline P. Phister, Sophie Faison Mitchell and Dora W. Pike, neither filed an answer to the bill nor denied in the pleadings the allegations in the answers of the other respondents. All except J. Morrison Parramore appeared by attorneys in the taking of depositions and participated in the argument in the lower court and in this court.

The learned Chancellor by his decree declared that all of the legatees and devisees of George F. Parramore, Sr., participated in the former suit contesting the validity of the will, that the condition stated in paragraph XIV was valid and applicable, and that Christ Episcopal Church in Eastville was entitled to all of the net estate of the testator. To review this decree two petitions for appeal were allowed, one to the twenty-four named beneficiaries who admitted they had participated in the contest and the other to the five beneficiaries who now claim they did not participate in the contest.

The question, whether legacies and devises conditional upon the legatee or devisee not contesting the will are actually subject to the condition, does not seem to have been determined in this jurisdiction. The question was briefly discussed in Fifield v. Van Wyck, 94 Va. 557, 563, 27 S.E. 446, where it is said by way of dictum that such conditions annexed to bequests of personal estate 'where there is no gift over upon breach of such condition are generally considered as in terrorem merely, and inoperative.' In most jurisdictions the distinction between such a conditional gift of realty and personalty with no gift over and one with gift over has been disregarded. Further discussion of this phase of the question is unnecessary as the will contains gifts over of personalty and realty.

Appellants and appellees agree that a condition against contesting a will or attempting to set it aside is generally held valid and enforceable. However, the twenty-four appellants contend that the general rule is subject to an exception, namely, that such provision is not effective as to the beneficiaries who unsuccessfully contest the will if it affirmatively appears that the contest was instituted by them in good faith and with probable cause to believe the will to be invalid.

The reason generally advanced by the authorities in support of the view that the 'no contest' condition should be held ineffective where the contest is based on good faith and probable cause is that a sound public policy demands that the truth of a disputable claim should be ascertained as the law provides, and that since courts are created to administer justice there should be no penalties inflicted upon those who seek their performance of that function. It is argued that if a will is actually invalid, a strict and literal application of such 'no contest' clause would tend to prevent the establishment of this fact, and thus thwart the course of justice. The persons, who may have been instrumental in the creation of the invalid document and who were to profit most by its admission to probate, would be provided a helpful cover for their wrongful acts. Hartz' Estate v. Cade etc., Minn. (1956) , 77 N.W.2d 169; Whitehurst v. Gotwalt, 189 N.C. 577, 127 S.E. 582; In re Friend's Estate, 209 Pa. 442, 58 A. 853, 68 L.R.A. 447; Rouse v. Branch, 91 S.C. 111, 74 S.E. 133, 39 L.R.A., N.S., 1160; Sherwood v. McLaurin, 103 S.C. 370, 88 S.E. 363; Tate v. Camp, 147 Tenn. 137, 245 S.W. 839, 26 A.L.R. 755; Dutterer v. Logan, 103 W.Va. 216, 137 S.E. 1, 52 A.L.R. 83; In re Will of Keenan, 188 Wis. 163, 205 N.W. 1001, 42 A.L.R. 836; In re Estate of Cocklin, 236 Iowa 98; 17 N.W.2d 129, 157 A.L.R. 584, Ann. 596, Ann. 125 A.L.R. 1135, 57 Am. Jur. Wills, § 1512, p. 1026; 81 Penn. Law Review, 267; 3 Washington Law Review, 45; I Roper on Legacies, p. 795; 8 Ala. Lawyer, 144; Ryan v. Wachovia Bank & Trust Co., 235 N.C. 585, 70 S.E.2d 853.

Some authorities maintain that in passing upon the defense of good faith and probable cause to a 'no contest' provision in a will, consideration should be given to the grounds of the contest. A will is usually contested on one or more of six grounds; namely, lack of testamentary capacity, fraud, undue influence, improper execution, forgery, or subsequent revocation by a later will. These authorities declare that where the contest is based upon the claim of revocation by a later will, the public has an interest in having all the documents properly presented to the court; a person knowing of such instrument has the moral if not the legal duty of presenting the instrument for consideration; it would be against public policy to deter such person from presenting the same if he knew that he would risk the loss of all benefits under the will if he took any action on it. The conclusion of these authorities is that if such person's action in instituting the contest is based on good faith and probable cause he should not be deprived of his benefits by the 'no contest' provision.

The same authorities argue that the public is interested in the discovery of the commission of the crime of forgery, and such forgery or subsequent revocation by a later will is usually based upon evidence more definite in character than that tending to establish the shadowy lines of demarcation involved in mental capacity, undue influence or fraud. They also argue that since this element is not involved in a contest based upon fraud, undue influence or lack of testamentary capacity, the balance of public policy favors sustaining the defense of good faith and probable cause where the contest is based upon forgery or the production of a later instrument believed to be the true will and should be rejected where the contest is based upon other grounds. Restatement, Property, § 428, p. 2499; Barry v. American Security & Trust Co., 77 U.S.App.D.C. 351, 135 F.2d 470, 146 A.L.R. 1204 and cases therein cited, and Ann. 1211.

Other authorities of equal dignity hold that 'good faith and probable cause' do not protect the contesting legatees or devisees. The reasons advanced in support of this view are well expressed by Chief Justice Rugg in Rudd v. Searles, 262 Mass. 490, 160 N.E. 882, 58 A.L.R. 1548, 1555, as follows: 'The ease with which plausible contentions as to mental unsoundness may be supported by some evidence is also a factor which well may be in the mind of a testator in determining to insert such a clause in his will. Nothing in the law or in public policy, as we understand it,...