Summary
affirming denial of leave to file late counterclaim where defendant "was aware for two years of a possible dispute over the will," and sought to file a counterclaim after the court held a hearing on the plaintiffs’ claim
Summary of this case from Primov v. Serco, Inc.Opinion
44402 Record No. 800557.
December 3, 1982
Present: All the Justices.
Words "said writing", in binding order of deputy clerk probating will, referred to specific bequests scratched out but still legible; other issues.
(1) Wills — Pleading and Practice — Probate Procedure — Clerks May Probate Wills, Etc. (Code Sec. 64.1-77) — Statutory Construction Clerk or Authorized Deputy Clerk May Probate Will Ex Parte and Judgment is In Rem.
(2) Wills — Pleading and Practice — Probate Procedure — Appeal From Order of the Clerk (Code Sec. 64.1-78) — Bill to Impeach or Establish Will Code Sec. 64.1-88) — When Bill Must Be Filed, Etc. (Code Sec. 64.1-89) — Statutory Construction — Clerk's Order Probating or Rejecting Will Binding Unless Drawn Into Question in the Manner Prescribed by Law.
(3) Wills — Pleading and Practice — Probate Procedure — Appeal From Order of the Clerk (Code Sec. 64.1-78) — Bill to Impeach or Establish Will (Code Sec. 64.1-88) — When Bill Must Be Filed, Etc. (Code Sec. 64.1-89) — Statutory Construction — Time to Challenge Will in Instant Case Has Run and Clerk's Order Final.
(4) Wills — Pleading and Practice — Probate Procedure — Clerks May Probate Wills, Etc. (Code Sec. 64.1-77) — Reference to "Said Writing" in Clerk's Order Probating Holograph Refers to Provisions Scratched Out But legible.
(5) Wills — Pleading and Practice — Cross Bill — Motion to File — Rules of Court — Discretion of Court (Rule 1:9) — Leave to File Cross Bill to Construe Will Properly Denied.
Testatrix died in 1977, leaving a holographic will containing a number of specific bequests but no residuary clause. Among the bequests were a corner cupboard to Carter and a gold whiskey bottle to Tinnell. These bequests had been scratched out by numerous lines drawn through them in ink but were legible.
In June, 1977, the will was probated by the deputy clerk of the Circuit Court of the City of Roanoke. According to the order, a writing was presented to the deputy clerk and proved by a witness to the will; therefore, "said writing" was probated. A nephew of the deceased qualified as administrator of the estate.
In July, 1977, and again in June, 1978, counsel for Carter and Tinnell wrote the administrator asking that the cupboard and bottle be distributed in accordance with the will. In the second letter, counsel suggested that the administrator seek a judicial determination of the matter. The administrator did not do this. No further action was taken until July, 1979, when the administrator's final accounting, stating that the cupboard and bottle had been distributed to himself, was approved by the Commissioner of Accounts. Carter and Tinnell excepted to this report.
The administrator filed an answer to the exception, stating that the will was unambiguous and proper distribution had been made according to its terms. The Trial Court heard oral arguments, although no evidence, and the parties agreed to submit legal memoranda. Subsequently, the administrator sought leave to file a cross-bill asking the Court to interpret the will and further requested that the Court hold an evidentiary hearing. The Trial Court denied leave to file the cross-bill, stating that the administrator had waited too long to take this action. The Trial Court held that "said writing" must be interpreted to include the language which was scratched over, but still legible. Relying on this language, the Court ordered appellant to deliver the cupboard and bottle to the appellees. This appeal ensued.
1. Under Code Sec. 64.1-77 an order of a clerk or authorized deputy clerk probating a will ex parte is a judgment in rem.
2. Unless drawn into question in the manner prescribed by law under Code Sec. 64.1-78 or 64.1-88 and -89 the order of the clerk or authorized deputy clerk probating or rejecting the will is binding.
3. In this case the time for challenge of the clerk's order has run, an interested party having six months within which to appeal the order under Code Sec. 64.1-78 or one year in which to bring a bill to impeach the will under Code Sections 64.1-88 and -89.
4. The reference in the deputy clerk's order probating "said writing" includes the provisions bequeathing the cupboard and whiskey flask which were scratched out but still legible. Harris v. Wyatt, 113 Va. 254, 74 S.E. 189 (1912), followed.
5. Leave to file a late pleading under Rule 1:9 being within the sound discretion of the Court, the Court did not abuse its discretion denying the administrator's motion for leave to file a cross-bill to construe the will, both sides having proceeded upon the assumption that the only question was one of law and the administrator, being aware for two years of a possible dispute over the will, having refused appellee's request that he seek construction of it.
Appeal from a judgment of the Circuit Court of the City of Roanoke. Hon. Jack B. Coulter, judge presiding.
Affirmed.
John A. Conrad (Douglas P. Rucker, Jr.; Sands, Anderson, Marks Miller, on brief), for appellant.
Alton B. Prillaman (Jolly, Place, Fralin Prillaman, on brief), for appellees.
In this appeal, we are asked to determine the disposition of certain property in the Estate of Indie C. Berk. The trial court held the property passed under specific bequests in the will, and appellant, who claims the property individually as a distributee of the estate, appeals.
Berk died in March, 1977, leaving behind a handwritten document which all parties concede is her last will and testament. This will contains a number of specific bequests, but has no residuary clause. Among the bequests is one to Mary Sue Carter of a corner cupboard and another to William Tinnell of a gold whiskey bottle. At some point, these bequests were scratched out by drawing numerous lines through them in ink. However, the trial court made a factual determination that the underlying writing is still legible.
In June, 1977, the will was admitted to probate by the deputy clerk of the Circuit Court of the City of Roanoke. The probate order recites that a writing was presented to the clerk, that "said writing" was proved by a witness to the will, and that, therefore, "said writing" is admitted to probate. Appellant, a nephew of the deceased, qualified as administrator of the estate.
In July, 1977, and again in June, 1978, counsel for the appellees wrote to the appellant or his counsel asking that the cupboard and bottle be distributed in accordance with the will. In the second letter, appellees suggested that the Administrator seek a judicial determination of the matter. However, the Administrator rejected this idea.
No further action was taken until July, 1979, when the Administrator's final accounting was approved by the Commissioner of Accounts. This accounting stated the cupboard and bottle had been distributed by the Administrator to himself. The appellees filed an exception to the Commissioner's report, giving rise to this case.
The Administrator filed an answer to the exception, stating the will was unambiguous and proper distribution had been made according to its terms. The trial court heard oral arguments, and the parties agreed to submit legal memoranda. No evidence was heard by the court. Subsequent to the first hearing, the Administrator sought leave to file a cross bill asking the court to interpret the will. Thereafter, he requested that the court hold an evidentiary hearing.
After further oral argument, the court issued a letter opinion. It denied leave to file the cross-bill, stating the Administrator had waited too long to take this action. The court held the probate order became final when no challenge was made within the time allowed by statute. The only question, then, was the meaning of the order. The court held that "said writing" must be interpreted to include the language which was scratched over, but still legible. Relying on this language, it ordered the Administrator to deliver the cupboard and bottle to the appellees.
[1-3] We affirm the decision of the trial court. Code Sec. 64.1-77 empowers clerks and their authorized deputies to probate wills.
In admitting a will to probate the clerk acts in a judicial capacity and the order made by him, admitting or rejecting a will, is as much a judgment as though entered by the court. His judgment is a judgment in rem whose validity can be drawn in question only in the manner and within the time prescribed by law.
First Church of Christ v. Hutchings, 209 Va. 158, 160, 163 S.E.2d 178, 179-80 (1968).
Code Sec. 64.1-78 provides that any interested person has six months to appeal a probate order entered by a clerk. Under Code Sections 64.1-88 and -89, a person not a party to the probate proceeding may bring a bill to impeach the will within one year of the entry of the order. As the statute provides, after this time, the order is "forever binding." Code Sec. 64.1-89. This being so, the question is what was probated by the order referring to "said writing."
The answer to this question is found in Harris v. Wyatt, 113 Va. 254, 74 S.E. 189 (1912). In Harris, the will offered for probate contained several lines that had been erased, but were apparently still visible. The probate order recited that the witness proving the will had stated the erasure was not present at the time he witnessed the testator's signature. The order went on to state that "said will" was admitted to probate.
In Harris, as in the present case, the question was: to what document did the order refer? We held the entire will had been admitted to probate, including the lines erased. "[E]ven if the language of the order of probate were ambiguous as to whether the will was admitted to probate including or excluding . . . [the erasure], the order should be construed as admitting the entire paper to probate . . . ." Id. at 260, 74 S.E. at 191. Here, the trial court correctly held the entire will, including the bequests to the appellees, was probated.
In a second argument, appellant contends the court erred in not allowing him to file a cross-bill asking for construction of the will. Leave to file a late pleading is within the sound discretion of the trial court. Rule 1:9; see also Westfall v. Westfall, 196 Va. 97, 103, 82 S.E.2d 487, 490 (1954). The Administrator was aware for two years of a possible dispute over the will, but took no action before attempting final settlement. Indeed, he refused appellees' request that he seek a judicial interpretation of the will. After the instant proceeding was initiated, both sides proceeded on the assumption that the only question was one of law, and presented oral and written arguments to the court. The Administrator stated in his answer to the appellees' exception that the will was unambiguous. Given all of this, the court did not abuse its discretion in denying appellant's motion for leave to file a cross-bill, made as the case was drawing to a close.
For the reasons stated, the judgment of the trial court will be affirmed.
Affirmed.