Thompson v. Royall
175 S.E. 748, 163 Va. 492 (1934)
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Rule of Law:
To revoke a will by "cancellation" under a statute requiring a physical act, the cancellation must involve marks, lines, or other physical defacement that touches the written words of the will itself; a notation on a blank portion of the document, such as the back, is insufficient.
Facts:
- On September 4, 1932, Mrs. M. Lou Bowen Kroll executed a valid, multi-page will, giving possession of it to the named executor, H. P. Brittain.
- On September 15, 1932, she executed a valid codicil, giving possession to her attorney, Judge S. M. B. Coulling.
- On September 19, 1932, Mrs. Kroll expressed her desire to revoke both the will and the codicil to her attorney.
- At her attorney's suggestion, instead of physically destroying the documents, she decided to keep them as a memorandum for a potential future will.
- Judge Coulling wrote on the back of the will's manuscript cover: "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 same."
- Mrs. Kroll signed this notation, which was not attested by witnesses. A similar signed notation was made on the back of the codicil.
- The original text of the will and codicil remained physically untouched, with no marks, lines, or alterations on their faces.
- Mrs. Kroll died on October 2, 1932.
Procedural Posture:
- After Mrs. Kroll's death, beneficiaries offered her will and codicil for probate in the trial court.
- The heirs at law were convened to contest the validity of the will.
- On the issue of devisavit vel non (whether the instrument is the will), a jury found that the documents were the last will and testament of Mrs. Kroll.
- The trial court entered an order sustaining the jury's verdict and probating the will.
- The heirs at law (appellants) were granted a writ of error to appeal the trial court's order to the Supreme Court of Appeals of Virginia.
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Issue:
Does a written notation on the back of a will's manuscript cover, stating the will is "null and void," constitute a valid revocation by "cancellation" under a statute that requires a physical act such as cutting, tearing, burning, or canceling the instrument?
Opinions:
Majority - Hudgins, J.
No. A written notation on the back of a will's cover does not constitute a valid revocation by cancellation. To effect a revocation by cancellation under the statute, there must be some physical defacement or mutilation of the written portion of the will itself, such as marks or lines across the text. The court reasoned that the statutory methods of revocation are exclusive and must be strictly followed, regardless of the testator's clear intent to revoke. The notations in this case were not executed with the formalities required for a revoking document (i.e., attested by witnesses). Therefore, to be effective as a "cancellation," the act had to be a physical one performed directly upon the testamentary language. Writing on a blank part of the paper, separate from the will's text, does not physically affect the will and is legally equivalent to a separate, unwitnessed writing, which is insufficient to revoke a will.
Analysis:
This decision establishes a strict, formalistic interpretation of the statutory requirements for revoking a will by cancellation. It clarifies that "cancellation" is a physical act that must be performed on the words of the will, not merely on the paper it is written on. This holding prioritizes the statutory formalities designed to prevent fraud and provide certainty over the clear, undisputed intent of the testator. The ruling creates a bright-line rule that, while providing clarity, can lead to outcomes that frustrate a testator's final wishes if they fail to comply with the precise physical act requirement.
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