Isaac v. Campbell

Opinion

FILES, P. J. This appeal involves the probate of a formal will which the testatrix attempted to alter by pen and ink strikeouts and interlineations.

Dorothy V. Gumming (hereinafter the decedent) died April 22, 1975, survived by a sister Gladys Gumming Noll and a brother Ulmont Gumming. The latter died prior to the probate of Dorothy’s will, and is represented in this proceeding by his executors.

The decedent left a typewritten witnessed will on the stationery of an attorney with a Portsmouth, Virginia, address, executed April 6, 1933. Mrs. Noll, as a beneficiary named in that will, petitioned for probate. The typewritten document, as offered for probate, had been mutilated by pen and ink lines drawn through portions of the text, and handwritten interlineations. Ulmont’s executors contested upon the ground that the mutilations and interlineations had the effect of cancelling the bequests, creating an intestacy. After a trial, the probate court made findings of fact and conclusions of law, and a judgment overruling the contest, and [870]admitting the April 6, 1933, document with modifications. The probate court’s findings of fact and conclusions of law declared that this will “devises all of the decedent’s real and personal property to Gladys Gumming Noll.”

Ulmont’s executors have appealed from that judgment. The issues they raise relate exclusively to the interpretation of the will.

The appeal comes here on a clerk’s transcript only. The record does not show what evidence was received other than the affidavits of the two persons who signed the typewritten will as witnesses, and who declared that the will, as executed, was entirely typewritten and did not contain any lineouts or handwritten interlineations.

The dispositive language of the typewritten will is as follows:

“Second: I give, devise and bequeath all my estate, real and personal, to my mother, Lelia Cumming, including my LaSalle 1932 Model Automobile; one diamond ring (one carat) with thirty-six small diamonds; one diamond ring with two saphires [sic] and four small diamonds; one diamond cluster ring, containing nine small diamonds.

“Third: If my mother should die first all my personal effects and moneys including the above named articles, I devise and bequeath to my sister, Gladys Cumming Noll.”