131 Va. 298 | Va. | 1921
delivered the opinion of the court.
This is a writ of error to a judgment of the Corporation Court of the city of Roanoke, admitting a certain letter to probate as the last will and testament of John C. Freeland, deceased. Two errors are assigned—first, that the letter in question shows on its face that it was not a will and was not intended as such; and second, that the court did not have jurisdiction because Freeland had no residence or estate in Roanoke, and did not die there. We will dispose of these assignments in their inverse order.
1. John C. Freeland came to Roanoke as a private in the United States Army in August or September, 1917. Prior thereto he had been in Fredericksburg, but for how long a time does not appear; The record discloses no other facts in respect to his previous residence. While stationed in Roanoke, on May 6,1918, he was married to Mary B. Oakes. After the marriage, so long as he remained in Roanoke, he regarded the home of his mother-in-law, with whom his wife resided, as his home; and prior to the marriage he agreed with the latter that he would make his home in Roanoke after he was discharged from military service. Shortly after the marriage he went with his company to Chattanooga, where he was stationed for a short time, and then went to France. His wife remained with her mother, and received numerous letters from him, exhibiting great affection for her and an interest in the household. In one of these he wrote: “My heart and prayers are with you
Freeland died in France from wounds received in action.
2. Under date of July 20, 1918, Freeland wrote to his wife a letter- consisting of several sheets apparently written in different sections or installments. This letter, was offered by her for probate as his will and admitted by the court as such. So far as immediately pertinent, that letter was as follows:
*301 “Now, sweetheart, don’t worry about the ’lotment or insurance for you will get everything that is coming to me. We are so we can hear the guns roar most of the time and soon will be on the firing line, but the sooner we get there the sooner the war will be over, and then I will return to the one I love best. Tell little Mamie to write to me too and all the rest of the folks. * * * I will write to the New York bank and have them send my liberty loan bond money to you and you can do whatever you think best with it. * * * I am not coming back until this war is over and then I will return to you. I have fixed the insurance and allotment so you will get it all right.”
A number of other letters were introduced in evidence for the purpose of showing the alleged testator’s situation and surroundings, and his regard for his wife. They clearly show, as does the one of July 20, 1918, that she was the principal object of his concern and affection; and, while many of them express the hope on his part of an early return to Roanoke, they have no room to doubt that they were written in contemplation of the probable fate which overtook him. For example, in September, 1918, he wrote her a letter in which he said this: “I will always be “trueful to you and keep you in my mind for I am coming back to you just as I came away from you if I live to get back, and if nothing happens I will be back alright.” Again he wrote: “I don’t think this war will last only to Xmas. Anyway, I hope not, for I want to come back to you, and I want to come back alive too, and I may have some wounds but 1 hope I won’t have many, anyway, but I can’t tell anything about it for the shells you know is some hot over here sometimes.”
• [2, 3] The case is not free from difficulty if we adhere strictly and rigidly to a literal application of the rule as generally expressed, that a paper to operate as a will must have been intended as such at the time it was written. We are
The English case of Gattwood v. Knee, 4 B. R. C. 910, 1 Law Rep. 1902, Probate Div., p. 99, is somewhat in point. In that case William Knee, a private in a branch of the British army, wrote a letter to Wiliam Gattwood which, after Knee’s death, was admitted to probate as a will. The letter, like the one involved in this case, spoke of other things, but contained this -¡language: “I am sending a box of things to you which I want you to look after for me until I come home. * * * They are a lot of curios and there is some things for you there, but if you have a letter saying that I am killed then the lot is for you. * * * You will receive the lot if I am killed in action for I shall make out my will in your favor; so you can keep this letter in case you want it for anything, but let us hope that I arrive home safe again.” The probate of this letter was resisted, and it was contended that the document ought not
In Virginia the policy of liberality and relaxation in favor of soldiers and seamen with respect to the making of wills of personal property finds legislative recognition in section 5231 of the Code. No real estate appears to have been owned by Freeland. Expressly limiting our decision to the facts of this particular case, we are of opinion that the judgment complained of was right, and the same will be affirmed.
Affirmed-