163 Va. 492
SYNOPSIS: Plaintiff heirs at law appealed from the judgment of the Virginia appellate court, which, in the heirs' will contest action, sustained the trial court verdict probating the will of the testator in favor of defendant beneficiaries.
-Lou Bowen Kroll asked Judge Coulling as well as H.P. Brittain to bring her will and codicil to her home.
-Lou told them both in the presence of her attorney to destroy them.
-Coulling suggested that instead of destroying the will and codicil, Kroll should retain the will and codicil in the event that she decided to execute a new will.
-Coulling wrote on the back of the manuscript cover to the will the words, “This will null and void and to be only held by H.P. Brittain instead of being destroyed as a memorandum for another will if I desire to make the same. This 19 Sept., 1932.”
-Afterwards, Crowell then signed the document.
-The same was written on the back of the codicil except the name S.M.B.
-Coulling was substituted for H.P. Brittain and signed by Kroll.
-The trial court admitted the will and codicil and Kroll’s heirs at law appeal the decision.
ANALYSIS: The only question presented by the record was whether the testatrix's will had been revoked shortly before her death. The notations in question were not wholly in the handwriting of the testatrix, nor were her signatures thereto attached attested by subscribing witnesses; hence under the statute they were ineffectual as some writing declaring an intention to revoke. The faces of the two instruments bore no physical evidence of any cutting, tearing, burning, obliterating, canceling, or destroying. The heirs argued that the notation written in the presence, and with the approval, of the testatrix, on the back of the manuscript cover in the one instance, and on the back of the sheet containing the codicil in the other, constituted canceling within the meaning of Va. Code Ann. § 5233 (1919). The proof established the intention to revoke but the testatrix failed to carry out that intent as required under the statute.
-Requirements for revocation of a will are found in Va. Code Ann. § 5233 (1919) the pertinent parts of which read that no will or codicil, or any part thereof, shall be revoked, unless by a subsequent will or codicil, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is required to be executed, or by the testator, or some person in his presence and by his direction, cutting, tearing, burning, obliterating, canceling, or destroying the same, or the signature thereto, with the intent to revoke.
OUTCOME: The judgment probating the testatrix's will was affirmed.
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