*1 Richmond Robert G. W. Halbleib. 14, 1974.
January Record No. 8191.
Present, Snead, Cochran, C.J., I’Anson, Harrison, Poff, Harman and JJ. Smith Reynolds, Winters, Winters & on (White, Robert G. brief), in error. plaintiff for defendant (John Baecher, Hicks brief), Joseph Harry J. error. of the court. delivered J.,
I'Anson, opinion below a for the inter filed in court petition of several Rose M. Hal- partes writings probate allegedly deceased, as her bleib, last will testament. impaneled *2 which, if dated ascertain of the to any, writings, writing including 1,1960, in the should March which was beneficiary, principal be to admitted decedent’s will. probate court, the the
After the evidence and instructions of considering 1, 1960, returned a verdict dated March that finding writing Halbleib, to have been “is not the valid Rose M. signed by purporting will of Rose M. Halbleib.” order, and, in the same was entered on the verdict
Judgment of the court overruled to the administrator motion require States the decedent’s estate to surrender him certain United to Savings him the death of Rose M. Bonds which were to Hal- payable upon We bleib. an granted Wilroy appeal. erred in (1) contends that the trial court permitting inconsistent
contestant, Halbleib, to W. Raymond of Rose and contentions contradictory purported signatures 1, 1960, and the carbon M. Halbleib on the dated March copy writing thereof, had ob- thereon been and that the forgeries, signatures to strike tained his motion influence; (2) undue not by sustaining the evi- because Halbleib’s evidence on undue influence (3) dence insufficient to submit those issues to jury; to him deliver the administrator of decedent’s estate to directing certain United States Bonds. Savings Rose died on
The evidence shows that M. Halbleib March 1971, seised and of real and located in possessed personal property husband, her of Norfolk. was survived W. She City Halbleib, of her estate. After who as administrator Halbleib qualified estate, his wife’s safe box he discovered in qualified deposit in the clerk’s office: which he writings lodged following paper instrument, A (1) dated March devising typewritten to her bequeathing principal portion nephew, husband. This of her estate. There was no for surviving provision It of “Rose M. Halbleib.” document carried purported signature D. of witnesses: Edward also carried the three subscribing Hurd, Hurd, Brewster; B. P. Charlotte Albi 1960, instrument, bore A
(2) of the March carbon copy of Rose Halbleib and M. purported signature witnesses; the above three attesting
A (3) document, dated holographic January signed by Rose Halbleib, M. $1,000 United Methodist giving Epworth Church;
(4) document, dated 1970, entitled holographic January 1,” “Amendment Halbleib, which directed that signed by # her husband should have her half interest in their home and that her be in a mausoleum which she had erected. body placed Edward D. Hurd testified that he wrote the document typewritten dated March 1960, at the Halbleib; al- request he was not an and had no he though attorney legal charged training, Mrs. Halbleib the will; $5.00 that Rose M. Halbleib writing both the this carbon document in his signed original and in the witnesses, other two one presence presence attesting whom, Albi Brewster, P. had since and that after docu- died; ments been had thus he handed them Rose M. Halbleib. B. one Hurd, witnesses,
Charlotte that Rose testified attesting *3 M. Halbleib both the and carbon original copy will in her and in wit- of the other presence attesting presence nesses.
Mattie mother of the and Wilroy, petitioner, sister-in-law of decedent, testified that the on the two signatures documents were the true Rose M. Halbleib. typewritten signatures She went with Rose Halbleib Hurd’s home when Rose discussed with will, Hurd of her but she not in room preparation with and them did not know how decedent’s “was will made up.” Rose and her a deal” each other. nephew thought “great McGowan,
Kathleen who worked with Rose M. Halbleib in a store for testified that Rose was department many years, opinionated, views, adamant her in and mentally capable. Halbleib, Halbleib, W. widower testified
that he and decedent were married and had lived for together more than 27 for a short they years, except period during He was well with the acquainted separated. handwriting signa- wife, ture of his docu- said signatures typewritten thereof, ment, 1, 1960, and the carbon dated were not March those with his wife’s He signature. purported signatures compared he she had on and other instruments which knew checks showed, said, him which, he out differences signed, pointed documents were not those of on two typewritten his wife. He said that the two documents found in the holographic safe box were in his wife’s deposit handwriting.
Halbleib also testified that Mattie had from time to time Wilroy shown an interest in the financial affairs of the Halbleib family to tell Rose what she should frequently make attempted disposition of her This, estate. Halbleib testified, indicated to him that Mattie had control” over his said, wife. He however, that “complete his wife was strong-willed opinionated. contends that the trial court erred in permitting
contestant, Halbleib, to exclusive and present jury mutually defenses of undue influence and He relies contradictory forgery. the rule stated in Burch v. Grace Street Bldg. 329, 340, 168 Va. Corp., (1937), that a will not be “to as party permitted sume successive in the suit, course of a suits, or series of in positions reference to the same fact or facts, state of which are inconsisent with each other, or mutually contradictory.”
The doctrine is in the nature of
and is a
rule of
estoppel
positive
based on manifest
and on considerations of
procedure
order
justice,
liness,
in
It
from
regularity,
expedition
litigation.
prevents litigants
fast and loose” with courts. Rohanna v.
196 Va.
Vazzana,
“playing
440, 442
S.E.2d
reliance on the doctrine
is
in
case
present
misplaced.
The doctrine
a
from
con-
estops
litigant
directly
taking
position
and inconsistent with
assumed,
one which he has
trary
previously
either in the course of
action,
same
cause of
litigation
in pais.
(1919), the Judge speaking “. defendant as several matters of . . law may plead many [T]he § Code, 8-134, or fact as he deems sec. 3264 supra]. [now necessary. so, allowable, Not us inconsistent are ‘but with only pleas other, one, the court cannot look to the existence of the hence trying 446 each branch the
we look of pleading totally upon separate other, from and the defenses under one cannot be distinct every curtailed existence the other. Were (sic) by straightened several, and even otherwise, it contradictory, liberty pleading is more common in be defeated .... would Nothing practice pleas than 234, at S.E. at 124 Va. 98 46. contradictory pleas.” defenses contestant, Halbleib, could assert inconsistent Since defenses, that it would based on those it follows evidence the alternate defenses of to the not constitute error submit the evidence. if undue influence forgery justified is whether the trial court on this The question appeal principal issue evidence on the undue to strike Halbleib’s erred in refusing influence. of undue submission of influence to a
To question justify jury, which is sufficient must be evidence to show that there presented of his volition to will executing deprived dispose person must be manifest as he wished. There irresistible coercion his property and directs the testator’s actions. Wood v. Wood, controls 109 Mullins v. 994, (1909); Coleman, 175 995 Va. Va. solicitation, Resistible 235, 239, S.E.2d 878 persuasion, do not constitute evi- sufficient advice, importunity suggestions, Va. Booker, undue influence. See dence of Redford cited. and cases there (1936), S.E. to Mattie bar, Halbleib’s In the case at testimony relating Wilroy’s on her which controlled show coercion does not activities any part how she should Halbleib as to and directed dispose most, Wil- will. At Mattie executed when she property de- mere more than to no amounted activities suggestions roy’s knew evidence that Mattie Moreover, was no there cedent. document and thereof executed the Halbleib had M. that Rose Robert of her estate to dated March leaving portion major son. Mattie Wilroy’s influence, court erred the trial of undue no evidence there was Since it from that issue evidence on not removing striking consideration. contention that the however, with We do agree, issue of the submit to was insufficient alleged evidence 1, 1960, docu the March Halbleib’s of Rose ments.
447 In a the burden is on the to show probate proceeding proponent evidence that the will was written preponderance and executed in the manner statute. contestant is not prescribed by to that the is not v. Grady Fauls, 189 required prove writing genuine. 565, 569, S.E.2d 832 See also Cross v. Va. Grimes, 184 926, 932, Va. 37 S.E.2d 3 (1946).
The evidence was factual whether question conflicting 1, 1960, Rose M. Halbleib on the March documents were Thus the of the witnesses and the genuine. credibility weight to be attached to their were be to resolved questions testimony whether the had carried his burden determining proponent, Halbleib’s genuine.
Here, we are unable to from the verdict whether say they 1, 1960, found the March document was not valid will of Halbleib on the of either undue influence or ground forgery. The trial court refused to direct the administrator correctly Bonds, to deliver the United States Savings payable Wilroy upon the death of Rose M. Halbleib. The ascertainment enforcement were not issues in this Tyson rights proper property proceeding. Whittle v. Scott, (1914); Va. 81 S.E. Roper, Moreover, Va. 756 (1928). statutory of the Norfolk did not Court jurisdiction Corporation City it the to determine that issue. give right power stated, For the reasons of the court below is reversed judgment case is remanded for a new trial.
Reversed and remanded. J., dissenting. Harrison,
I with the contention of the that Halbleib’s defense agree appellant (the on the will was not his wife) was forgery signature signed by with his defense of undue inconsistent influence (the signature wife, will was that of his but she was coerced or influenced unduly Further, and but that Halbleib could sign). assuming agreeing evidence and have the instructed on both theories pursue, present time, the same I find the at evidence insufficient to establish either or undue influence. I would therefore reverse and enter final for Wilroy. judgment