Chapter 41. WILLS.
Article 1. Capacity to Make, and Requisites and Validity of, a Will.
Revisers’ Note.—Section 23, c. 77, Code 1923, proy viding for the appointment of a curator, is made e §5, art. 1, c. 44. ll
§1. Who May Make Will and as to What Property.—Every person not prohibited by the following section may, by will, dispose of any estate to which he shall be entitled at his death, and which, if not so disposed of, would devolve upon his heirs, personal representative, or next of kin. The power hereby given shall extend to any estate, right, or interest, to which the testator may be entitled at his death, not withstanding he may become so entitled after the execution of the will.(Code 1849, c. 122, §2; Code 1860, c. 122, §2; Code 1868, c. 77, §1; 1882, c. 84, §1; Code 1923, c. 77, §1.)
Revisers’ Note.—Verbal changes only are made in this section.
§2. Who May Not Make Will.—No person of unsound mind, or under the age of twenty-one years, shall be capable of making a will.(Code 1849, c. 122, §3; Code 1860, c. 122, §3; 1868, c. 97, §3; Code 1868, c. 77, §2; 1882, c. 84, §2; Code 1923, c. 77, §2.)
Revisers’ Note.—The provision permitting a minor over the age of eighteen to make a will is eliminated. This is in line with legislative action in most of the states. The omitted provision originated at a time when personal property constituted but a small part of the wealth of a people. At present it probably constitutes the majority of such wealth. The reason for the provision no longer exists.
§3. Must be in Writing; Witnesses.—No will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature; and moreover, unless it be wholly in the handwriting of the testator the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, and of each other, but no form of attestation shall be necessary.Code 1849, c. 122, §4; Code 1860, c. 122, §4; Code 1868, c. 77, §3; 1882, c. 84, §3; Code 1923, c. 77, §3.)
Revisers’ Note.—The words “wholly in the handwriting of” are substituted for “wholly written by,” so as to remove any doubt that wills written by means of a typewriter or other mechanical process require witnesses.
§4. Execution of Power of Appointment.—No appointment made by will, in the exercise of any power, shall be valid unless the same be so executed that it would be valid for the disposition of the property to which the power applies, if it belonged to the testator; and every will so executed shall be a valid execution of a power of appointment by will, notwithstanding in the instrument creating the power expressly inquires that a will made in execution of such in power shall be executed with some additional or other form of execution or solemnity.(Code 1849, c. 122, §5; Code 1860, c. 122, §5; 1868, c. 97, §5; Code 1868, c. 77, §4; 1882, c. 84, §4; Code 1923, c. 77, §4.)
§5. Wills of Personal Estate by Soldiers, Sailors or Nonresidents.—Notwithstanding the two preceding sections, a soldier being in actual military service, or a mariner or seaman being at sea, may dispose of his personal estate as he might heretofore have done; and the will of a person domiciled out of this state at the time of his death shall be valid as to his personal property in this state, if it be executed according to the law of the state or country in which he was so domiciled.(Code 1849, c. 122, §6; Code 1860, c. 122, §6; Code 1868, c. 77, §5; 1882, c. 84, §5; Code 1923, c. 77, §5.)
Revisers’ Note.—In this section the word “his” is substituted for “all” before the words “personal property.”
§6. When Marriage Revokes Will.—Every will made by a man or woman shall be revoked by his or her marriage, except a will which makes provision therein for such contingency, or a will which, though not making provision for such contingency, is made in exercise of a power of appointment, when the estate thereby appointed would not, in default of such appointment, pass to his or her heirs, personal representative, or next of kin.(Code 1849, c. 122, §7; Code 1860, e. 122, §7; Code 1868, c. 77, §6; 1882, c. 84, §6; Code 1923, c. 77, §6.)
Revisers’ Note.—In addition to excepting from the operation of this section a will made in the exercise of a power of appointment, when the condition stated in the section exists, there is added a provision excepting a will making provision for the contingency of marriage. This change is made to meet the facts of Francis v. Marsh, 54 W. Va. 545, 6 S. E. 573. As any children born after the making of a will are taken care of by §§1 and 2, art. 4 of this chapter, and a wife or husband may renounce the provision that is made for her or him in the will and take a prescribed portion of the estate as if there were no will, and may also take prescribed portion of the estate when no provision is made in the will, it is not perceived how any arm will follow from the amendment of this section.
§7. Revocation Generally.—No will or codicil, or any part thereof, shall be revoked, unless under the preceding section, or 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.(Code 1849, c. 122, §8; Code 860, c. 122, §8; Code 1868, c. 77, §7; 1882, c. 4, §7; Code 1923, c. 77, §7.)
§8. Revival After Revocation.—No will or codicil, or any part thereof, which shall be in any manner revoked, shall, after being revoked, be revived otherwise than by the reexecution hereof, or by a codicil executed in the manner hereinbefore required, and then only to the extent to which an intention to revive the same is shown.(Code 1849, c. 122, §9; Code 1860, c. 122, §9; Code 1868, e. 77, §8; 1882, c. 84, §8; Code 1923, c. 77, §8.)
§9. Effect of Subsequent Conveyance.—No conveyance or other act subsequent to the execution of a will shall, unless it be an act by which the will is revoked as aforesaid, prevent its opertion with respect to such interest in the estate comprised in the will as the testator may have power to dispose of by will at the time of his death.(Code 1849, c. 122, §10; Code 1860, c. 122, §10; Code 1868, c. 77, §9; 1882, c. 84, §9; Code 1923, c. 77, §9.)
§10. On What Wills Chapter Operates; When Reexecuted Wills Deemed to be Made.—The validity and effect of wills executed prior to the time this Code becomes effective shall be determined by the laws of this State in force at the time of their execution. Every will reexecuted, or republished, or revived by any codicil, shall, for the purposes of this chapter, be deemed to have been made at the time at which the same shall be so reexeeuted, republished, or revived.(Code 1849, c. 122, §22; Code 1860, c. 122, §22; Code 1868, c. 77, §21; 1882, c. 84, §21; Code 1923, c. 77, §21.)
Revisers’ Note.—Section 21, c. 77, Code 1923, provided that the preceding sections of that chapter should not extend to wills made prior to July 1, 1850, and that the validity and effect of such wills should be determined by the laws in force prior to that day. As rewritten this section protects not only wills made prior to July 1, 1850, but any will in existence at the time this revised Code becomes effective, against any changes in the law that are made herein.
Article 2. Competency of Witnesses.
§1. Competency of Witnesses Who are Beneficiaries.—If a will be attested by a person to whom, or to whose wife or husband, any beneficial interest in any estate is thereby devised or bequeathed, if the will may not be otherwise proved, such person shall be deemed a competent witness; but such devise or bequest shall be void, except that, if such witness would be entitled to any share of the estate of the testator, in case the will is not established, so much of his share shall be saved to him as shall not exceed the value of what is so devised or bequeathed. In case the will be contested any such attesting witness may, at the instance of any contestant, be required, either in court or by deposition, to testify as upon, and with the effect of, cross-examination; and the giving of such testimony or testimony in rebuttal thereto by such attesting witness, shall not, if the will be established or admitted to probate, affect in any manner the devise or bequest to such attesting witness, or to the wife or husband of such witness.(Code 1849, c. 122, §19; Code 1860, c. 122, §19; Code 1868, c. 77, §18; 1882, c. 84, §18; Code 1923, c. 77, §18.)
Revisers’ Note.—The last sentence is new. It has been held that a will may be proved by only one subscribing witness, or by other competent evidence, without affecting a devise or bequest to the other witness. See Webb v. Dye, 18 W. Va. 376, and Davis v. Davis, 43 W. Va. 300, 27 S. E. 323. Because of instances of seeming abuse of such privileges this new sentence is added, so that if any attesting witness be not called to testify by the proponents of the will, or proof of the will entirely by other evidence than that of subscribing witnesses be offered, the circumstances of the execution of the will may still be inquired into, at the instance of a contestant, by cross-examining the attesting witness or witnesses, and, in such case, without affecting, if the will stands, the devise or bequest to any such witness, or to his wife or her husband.
§2. Creditors May be Witnesses.—If a will charging any estate with debts be attested by a creditor, or the wife or husband of a creditor, whose debt is so charged, such creditor shall, notwithstanding, be admitted a witness for or against the will.(Code 1849, c. 122, §20; Code 1860, c. 122, §20; Code 1868, c. 77, §19; 1882, c. 84, §19; Code 1923, c. 77, §19.)
§3. Executor May be Witness.—No person shall, on account of his being executor of a will, be incompetent as a witness for or against the will.(Code 1849, c. 122, §21; Code 1860, c. 122, §21; Code 1868, c. 77, §20; 1882, c. 84, §20; Code 1923, c. 77, §20.)
Article 3. Provisions as to Construction.
§1. When Will Takes Effect.—A will shall be construed, with reference to the estate comprised in it, to speak and take effect as if it had been executed immediately before the death of the testator, unless a contrary intention shall appear by the will.(Code 1849, c. 122, §11; Code 1860, c. 122, §11; Code 1868, c. 77, §10; 1882, c. 84, §10; Code 1923, c. 77, §10.)
Revisers’ Note.—The words “real and personal” that heretofore appeared before the word “estate” are omitted.
§2. When Advancement Deemed Satisfaction of Devise or Bequest.—A provision for or advancement to any person shall be deemed a satisfaction in whole or in part of a devise or bequest to such person, contained in a previous will, if it would be so deemed in case the devisee or legatee were the child of the testator; and whether he be a child or not, it shall be so deemed in all cases in which it shall appear from parol or other evidence to have been so intended.(Code 1849, c. 122, §12; Code 1860, c. 122, §12; Code 1868, c. 77, §11; 1882, c. 84, §11; Code 1923, c. 77, §11.)
§3. Death of Devisee or Legatee Before Testator.—If a devisee or legatee die before the testator, or be dead at the time of making of the will, leaving issue who survive the testator, such issue shall take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition thereof be made or required by the will. And if the devise or bequest be made to two or more persons jointly, and one or more of them die without issue or be dead at the time of the making of the will, the part of the estate so devised or bequeathed to him or them shall not go to the other joint devisees or legatees, but shall, in the case of a devise, descend and pass to the heirs-at-law, and, in the case of a bequest, go and pass to the personal representative, of the testator, as if he had died in testate, unless the will otherwise provides.(Code 1849, c. 122, §13; Code 1860, c. 122, §13; Code 1868, c. 77, §12; Code 1882, c. 84, §12; Code 1923, c. 77, §12.)
Revisers’ Note.—In the first and second sentences the words, “or be dead at the time of the making of the will,” are added, a change suggested by the decision in Wildberger v. Cheek’s Ex’r., 94 Va. 517, 27 S. E. 441. The second sentence is also changed, so that the same rule is applied to bequests as to devises.
§4. Failure or Invalidity of Devise or Bequest.—Unless a contrary intention shall appear by the will, such real or personal estate, or interest therein, as shall be comprised in any devise or bequest in such will, which devise or bequest shall fail or be void, or be otherwise incapable of taking effect, shall, if the estate be real estate, be included in the residuary devise, or, if the estate be personal estate, in the residuary bequest, if any residuary devise or bequest be contained in such will, and, in the absence of such residuary devise or bequest, shall pass as in case of intestacy.(Code 1849, c. 122, §14; Code 1860, c. 122, §14; Code 1868, c. 77, §13; 1882, c. 84, §13; Code 1923, c. 77, §13.)
Revisers’ Note.—Section 13, c. 77, Code 1923, is rewritten so as to include personalty by express terms, which is the law without the statute. See 2 Min. Inst. 4th ed.) 1009.
§5. Construction of Devises in General Terms.—A devise of the land of the testator, or of the land of the testator in any place, or in the occupation of any person mentioned in his will, or otherwise described in a general manner, and any other general devise which would describe a leasehold estate, if the testator had no freehold estate which could be described by it, shall be construed to include his leasehold estates, or any of them to which such description shall extend, as well as freehold estates, unless a contrary intention shall appear by the will.(Code 1849, c. 122, §15; Code 1860, c. 122, §15; Code 1868, c. 77, §14; 1882, c. 84, §14; Code 1923, c. 77, §14.)
§6. Operation of Devise or Bequest as Power of Appointment.—A devise or bequest shall extend to any real or personal estate (as the ease may be) which the testator has power to appoint as he may think proper, and to which it would apply if the estate were his own property, and shall operate as an execution of such power, unless a contrary intention shall appear by the will.(Code 1849, c. 122, §16; Code 1860, c. 122, §16; Code 1868, c. 77, §15; 1882, c. 84, §15; Code 1923, c. 77, §15.)
§7. Courts of Equity May Construe Wills.—Notwithstanding any other provision of law, and notwithstanding there is no other ground of equity jurisdiction, courts possessing general equity powers shall have and take jurisdiction of a suit to construe an ambiguous will at the suit of the executor, or administrator with the will annexed, or of any beneficiary thereunder whose interests are affected by a construction of the ambiguous provision.
Revisers’ Note.—This section is new. In Buskirk v. Ragland, 65 W. Va. 74, 65 S. E. 101, and Martin v. Martin, 52 W. Va. 381, 44 S. E. 198, it is held that “Jurisdiction in equity to construe wills is limited and special, and will only be exercised as incident to general equity jurisdiction, and then, in a particular case, only to the extent of determining whether or not the relief sought can be granted,” and this section is intended to confer general equity jurisdiction to construe ambiguous wills.
Article 4. Provisions as to Pretermitted Children.
§1. Where no Child Living When Will Made.—If any person die leaving a child, or his wife with child, which shall be born alive, and leaving a will made when such person had no child living, wherein any child he might have is not provided for or mentioned, such child, or any descendant of his, shall succeed to such portion of the testator’s estate as he would have been entitled to if the testator had died intestate; and towards raising such portion the devisees and legatees shall, out of what is devised and bequeathed to them, contribute ratably, either in kind or in money, as a court of equity, in the particular case, may deem most proper. But if any such child, or descendant, die under the age of twenty-one years, unmarried and without issue, his portion of the estate, or so much thereof as may remain unexpended in his support and education, shall revert to the person or persons to whom it was given by the will.(Code 1849, c. 122, §17; Code 1860, c. 122, §17; Code 1868, c. 77, §16; 1882, c. 84, §16; Code 1923, c. 77, §16.)
Revisers’ Note.—The words “with child” are substituted for the French word “enceinte”; also, the words “children living,” which erroneously appeared in the Code of 1923, are corrected to read “child living.” The most substantial change is made with respect to the effect on the devises and bequests made by the will. Section 16, c. 77, Code 1923, reads, following the words “mentioned,” “such will, except so far as it provides for the payment of the debts of the testator, shall be construed as if the devises and bequests therein had been limited to take effect, in the event that the child shall die unmarried and without issue.” By the revised section the devises and bequests in the will take effect immediately upon the death of the testator, instead of remaining inoperative during the minority of the child or until his or her marriage and the birth of a child, in which respect it follows Acts of Va. 1924, p. 459, §5242, Code Va. 1924. The pretermitted child is now considered as the heir of an intestate father, and equity is given supervisory power over the levying of the child’s share from the various legatees and devisees.
§2. Where Child Living When Will Made.—If a will be made when a testator has a child living, and a child be born afterwards, such after-born child or any descendant of his, if not provided for by any settlement, and neither provided for nor expressly excluded by the will, but only pretermitted, shall succeed to such portion of the testator’s estate as he would have been entitled to if the testator had died in testate, toward raising which portion the devisees and legatees shall, out of what is devised and bequeathed to them, contribute ratably, either in kind or in money, as a court of equity, in the particular case, may deem most proper. But if any such after-born child or descendant die under the age of twenty-one years, unmarried and without issue, his portion of the estate, or so much thereof as may remain unexpended in his support and education, shall revert to the person or persons to whom it was given by the will.(Code 1849, c. 122, §18; Code 1860, c. 122, §18; Code 1868, c. 77, §17; 1882, c. 84, §17; Code 1923, c. 77, §17.)
Article 5. Production, Probate and Record of Wills.
Legislative Note.—Section 16 of this article, as reported by the revisers, is omitted. It provided that the like presumption as to the mental capacity of a decedent to make a will should obtain as in other cases.
§1. Custodian of Will to Deliver Same to Clerk of County Court or Executor; Liability for Neglect.—A person having custody of a will shall, within thirty days after the death of the testator is known to him, deliver such will to the clerk of the county court having jurisdiction of the probate thereof, or to the executor named in the will, who shall offer it for probate, or deliver it to the clerk, within a reasonable time. Any person who shall, without reasonable cause, neglect so to deliver a will shall be guilty of a misdemeanor, and, on conviction, be punished by a fine not exceeding two hundred dollars; and shall in addition be liable to any person interested in such will for all damages caused by such neglect.
Revisers’ Note.—This and the following section are new. Similar statutes exist in other states; for example see Rev. Stats. Me., 1916, c. 68, §4; Mass. Gen. Laws, 1921, c. 191, §13; Mich. Comp. Laws, 1915, §§13, 776-8; Ann. Code Md., art. 93, §§339, 340.
§2. Clerk to Notify Executor and Beneficiaries, and to Keep Will Safe in His Office.—Upon delivery of a will unto him as provided in the next preceding section, the clerk shall notify by mail or otherwise the executor and the beneficiaries named in the will, of such delivery, and shall keep the same safe in his office until proceedings may be had for the probate thereof, or until it is demanded by an executor or other person authorized to demand it for the purpose of having it proved according to law.
Revisers’ Note.—This section is new. See note to preceding section.
§3. Compelling Production of Will and Offer of Probate.—A county court having jurisdiction to probate a will, or the clerk thereof in the vacation of the court, upon being informed that any person has in his custody the will of a decedent, shall summon him, and by proper process compel him to produce the same. Upon the production of the will it shall remain on file in the clerk’s office until proceedings are taken for the probate thereof. If any party desires to contest such will he may by application to the court or the clerk thereof in vacation have a rule against the executors and all the beneficiaries named in the will, returnable to the court, to be served in the manner prescribed in this article for service of process upon petition to probate a will in solumn form, of offer such will for probate. If none of the executors or beneficiaries offers such will for probate within ten days after the return day of the rule, the court of its own motion shall offer the same for probate, so that the parties adversely affected by the will may contest the same.(Code 1849, c. 122, §25; Code 1860, c. 122, §25; Code 1868, c. 118, §4; 1882, c. 84, §24; Code 1923, c. 77, §24.)
Revisers’ Note.—Section 24, c. 77, Code 1923, contained only the first sentence of this revised section. In that sentence the words “or the clerk thereof in the vacation of the court” are inserted. The second sentence is entirely new. It was suggested by the situations that existed in the cases of Snedeker v. Rulong, 69 W. Va. 223, 71 S. E. 180, and In re Nicholas’ Will, 116 Va. 949, 83 S. E. 368, where heirs, knowing of the existence of wills, could not contest them because the beneficiaries thereunder refrained from offering the same for probate. The provision for the court to offer the will for probate is to obviate the necessity, in the case of one desiring to contest the will, of being compelled to sponsor it for probate.
§4. Place of Probate.—The county court shall have jurisdiction of the probate of wills according to the following rules.
(a) In the county wherein the testator, at the time of his death, had a mansion house or known place of residence; or
(b) If he had no such house or place of residence, then in the county wherein any real estate devised thereby is situated; or
(c) If there be no real estate devised there by, and the testator had no such house or place of residence, then in the county wherein he died, or in any county wherein he had any property at the time of his death; or
(d) If he died out of this State, his will or an authenticated copy thereof, may be admitted to probate in any county in this State, wherein there is property devised or bequeathed thereby.(Code 1849, c. 122, §23; Code 1860, c. 122, §23; Code 1868, c. 77, §22; 1872-3, c. 222, §22; 1882, c. 84, §22; Code 1923, c. 77, §22.)
Revisers’ Note.—Verbal changes, not affecting the substance, are made in this section.
§5. Procedure for Probate in Solemn Form.—The county court, sitting in a regular or special session, shall hear and determine all proceedings to admit a will to probate in solemn form. Upon or at any time after the production of a will, any person may offer the will for probate in solemn form by filing in the county court having jurisdiction a petition duly verified by affidavit, stating when and where the testator died, his last place of residence, the nature of his estate, the relationship to decedent and place of residence of each of his heirs at law and distributees, surviving wife or husband, and each of the beneficiaries of the will. Process shall issue against and be served upon all persons interested in the probate of the will to appear at a day named, and show cause why the will should not be admitted to probate. A guardian ad litem for any person under disability shall be appointed, upon whom such process may be served, and such process shall be served upon parties resident in the State, and proceedings by order of publication or service in person without the State shall be had against all nonresidents and against all persons to the petitioner unknown, in the same manner as process is served and such proceedings had in suits in equity. At any time after the petition is filed and before final order is made admitting or refusing to admit the will to probate, any person desiring to contest the will may appear and file a notice of contest in the proceeding, stating concisely the grounds of such contest. Thereupon, process shall issue on such notice and be served upon any person whose interest will be adversely affected by a refusal to admit the will to probate to appear and defend his interest. Any person sui juris may waive service of process upon the petition or notice, and the guardian ad litem of any person under disability may waive service of any such process, upon such person and upon himself. Process upon the petition or notice shall be served at least ten days before the return day thereof. Any petition or notice of contest hereunder may be filed in the office of, process be issued, served and returned, and a guardian ad litem appointed by, the clerk of the court in the vacation of the court, and the proceeding may be matured and set down for hearing.(Code 1849, c. 122, §§28, 29, 30; Code 1860, c. 122, §§28, 29, 30; Code 1868, c. 77, §§23, 24, c. 118, §7; 1882, c. 84, §26; 1883, c. 55, §26; Code 1923, c. 77, §26.)
Revisers’ Note.—Section 3 of this article prescribes a method for compelling the production of a will. Section 26, c. 77, Code 1923, provides briefly for the probating of wills in solemn form. This provision is elaborated in this section, and provision made for process upon a notice of contest for the reason that the interests of the proponent of the will may be promoted by a refusal to probate it, and the former method of contesting the will required notice to be given by the contestant to the proponent only. For ex parte procedure, which is also contained in §26, c. 77, Code 1923, see §10 of this article.
§6. Hearing and Decision.—If no contest be made, the court may, on the return day of the summons on the petition, and, if contest be made, on the return day of the process upon notice of contest, or at any day thereafter fixed by the court, proceed to hear and determine the question of probate, and enter such order or judgment thereon as the law and the evidence in the case requires.(Code 1849, c. 122, §31; Code 1860, c. 122, §31; Code 1868, c. 77, §25; 1882, c. 84, §28; Code 1923, c. 77, §28.)
Revisers’ Note.—Sections 26 and 28, c. 77, Code 1923, are rewritten to fix more definitely the time for hearing upon a proceeding to probate in solemn form, or a contest upon such proceeding, and to give at least ten days after the service of process within which any person interested may file a notice of contest or prepare to present his grounds of contest, or meet the claims of his adversary. See preceding section and the revisers’ note thereto.
§7. Appeal from Probate Order; When May be Taken; Procedure.—Any person feeling himself aggrieved by any order or judgment of the county court admitting or refusing to admit any will to probate may, within eight months, or, if such a person be under any disability within eight months after such disability ceases, file his petition in the circuit court of such county, or before the clerk thereof, appealing to the circuit court from such order or judgment, stating in the petition the grounds of appeal, and the parties interested in the probate of the will; and, in case of appeal, it shall be the duty of the clerk of the county court promptly to transmit to the clerk of the circuit court, the will and all original papers filed or used in the proceedings for probate, together with copies of all orders made therein. The clerk of the circuit court shall, upon the filing of such petition, issue process thereon, and the case shall be proceeded in, tried and determined in such court, regardless of the proceedings before the county court, and in the same manner and in all respects as if the application for such probate had been originally made to the circuit court.(1863, c. 36, §4; Code 1868, c. 118, §8; 1882, c. 84, §29; 1883, c. 55, §29; Code 1923, c 77, §29.)
Revisers’ Note.—Section 29, c. 77, Code 1923, is modified as follows: References to decisions by the clerk are omitted as not applicable, as in said section they were inserted because it combined an ex parte proceeding with a proceeding to probate a will in solemn form. The time within which an appeal may be taken is reduced from one year to eight months, in harmony with the consensus of opinion that court proceedings should be shortened. Additional time given a person under disability is reduced from one year to three months after the disability ceases. A person under disability represented at the hearing by a guardian ad litem is limited to the same period for an appeal as a person sui juris.
Legislative Note.—A person under disability, even though represented at the hearing, is given the same period after the disability is removed within which to appeal as is given a person not under disability, in conformity with §29, c. 77, Code 1923.
§8. Other Testamentary Papers to be Produced; Jury Trial if Desired.—If there be more than one testamentary paper in question in any such proceeding, the circuit court shall order them all to be produced. The circuit court shall order a trial by jury, if demanded by any person interested, to ascertain whether the will in question, or if there be more than one, which of them, or what part or parts of either or any of them, is the true will of the decedent; and, if trial by jury be not asked, the circuit court shall proceed to try and decide the question of probate, and shall make and enter in relation thereto such final judgment or order as the law and the evidence may require. A copy of such judgment or order shall be returned to, filed and recorded in, the office of the clerk of the county court, and also any will established in such proceedings and admitted to probate in the circuit court shall be returned to, filed, and recorded (if not already of record) in such office.(Code 1849, c. 122, §32; Code 1860, c. 122, §32; Code 1868, c. 77, §26; 1872-3, c. 222, §26; 1882, c. 84, §30; Code 1923, c. 77, §30.)
Revisers* Note.—For the sake of clearness, the words “circuit court” are used instead of “court”; and also, for the same reason, the last sentence of §30, c. 77, Code 1923, is redrafted. A certain part or parts of a testamentary paper may be the will of a decedent and other portions may not be, and this section is modified to meet such a state of facts.
§9. Order as Bar to Suit in Equity.—Every such order or judgment of a county court not appealed from in proceedings for probate in solemn form, or in an ex parte proceeding which has been converted into a proceeding in solemn form by a contest therein, and every such order or judgment of a circuit court on appeal, shall be a bar to a bill in equity to impeach or establish such will, unless upon grounds which would give to a court of equity jurisdiction over other judgments at law.(Code 1849, c. 122, §33; Code 1860, c. 122, §33; Code 1868, c. 77, §27; 1882, c. 84, §31; Code 1923, c. 77, §31.)
Revisers’ Note.—The application of this section is restricted, by the insertion of the new phrase “in proceedings for probate in solemn form,” to that method of probate; for, by §11 of this article, when such method of probate is pursued, a bill in equity to impeach or establish a will does not lie, except when parties are omitted. See 3 Minor’s Inst. (2d ed.) 556, 557, for methods of probating a will.
§10. Ex Parte Procedure to Probate; Appeal.—At, or at any time after, the production of a will, any person may move the county court having jurisdiction, or the clerk thereof in the vacation of the court, for the probate of such will, and the court or the clerk thereof, as the case may be, may, without notice to any party, proceed to hear and determine the motion and admit the will to probate, or reject the same. The probate of, or refusal to probate, any will, so made by the clerk, shall be reported by him to the court at its next regular session, and, if no objection be made thereto, and none appear to the court, the court shall confirm the same. If any person entitled to contest the probate of a will shall appear before the clerk of the court before a decision is made by him admitting or refusing to admit the will to probate, or before the county court at any time before it has made an order confirming the action of the clerk in admitting or refusing to admit such will to probate, or before such court in any ex parte proceeding to probate a will made in the court in the first instance before it has made an order admitting or refusing to admit the will to probate, and file a notice of contest of the probate of the will, stating distinctly the several grounds of objection, process on such notice shall be issued and the proceeding thereafter shall be heard before the county court only, and in all respects in the same manner as if the will had been offered for probate in solemn form; and any judgment entered by the county court on such proceeding shall have the same effect, and an appeal shall lie therefrom, as if the original proceeding to probate the will had been made in solemn form: Provided, That the only notice to the parties interested or process against them required in such case shall be upon the notice of contest. In all ex parte proceedings in which there is no contest, the action of the clerk in admitting the will to probate, when confirmed by the court, shall have the same effect in all respects as if the will had been admitted to probate and record by the county court in the first instance.(Code 1849, c. 122, §34; Code 1860, c. 122, §34; 1883, c. 55, §26; Code 1923, c. 77, §26.)
Revisers’ Note.—This section is intended to cover that part of §26, c. 77, Code 1923, making provision for an ex parte proceeding to probate a will before the county court, or a clerk thereof. The first sentence of said §26 is a fair example of careless legislation. Without in any section authorizing the county court to hear an ex parte proceeding to probate a will, it confers upon the clerk of the county court in the recess of the court the right to hear and decide an ex parte application for such probate, with like effect as the court itself could do. To give this sentence any effect whatever it is necessary to read into it a grant of authority to a county court to hear an ex parte proceeding to probate a will in the absence of any language conferring such authority. The new section codifies the existing law and the practice under it, and in the event that any person entitled to contest desires to appear voluntarily and contest the probate of a will, provision is made for such appearance and the entire matter is simplified by converting the ex parte proceeding upon the filing of a notice of contest to a proceeding to probate in solemn form. In such case notice and process upon the application to contest the will being required on all parties interested, there is no reason for duplication and requiring a notice upon the original application. For procedure for probate in solemn form see §5 of this article.
§11. Impeachment or Establishment in Equity; Trial by Jury.—After a judgment or order entered as aforesaid in a proceeding for probate ex parte, any person interested who was not a party to the proceeding, or any person who was not a party to a proceeding for probate in solemn form, may proceed by bill in equity to impeach or establish the will, on which bill, if required by any party, a trial by jury shall be ordered, to ascertain whether any, and if any, how much, of what was so offered for probate, be the will of the decedent. The court may require all other testamentary papers of the decedent to be produced, and the inquiry shall then be which one of all, or how much of any, of the testamentary papers is the will of the decedent. If the judgment or order was entered by the circuit court on appeal from the county court, such bill shall be filed within two years from the date thereof, and if the judgment or order was entered by the county court and there was no appeal therefrom, such bill shall be filed within two years from the date of such order of the county court. If no such bill be filed within the time prescribed, the judgment or order shall be forever binding. Any bill filed under this section shall be in the circuit court of the county wherein probate of the will was allowed or denied.(Code 1849, c. 122, §34; Code 1860, c. 122, §34; 1863, c. 36, §4; Code 1868, c. 77, §28, c. 118, §9; 1882, c. 84, §32; Code 1923, c. 77, §32.)
Revisers’ Note.—Section 32, c. 77, Code 1923, is redrafted. The second sentence is new, and is added in order to make this section accord with §8 of this article. The time within which the will may be impeached or established by bill in equity under this section is reduced from five to two years, making the time allowed the same that a nonresident proceeded against by publication has to open up judgments and decrees taken in actions and suits in the circuit court, and decreasing the period that a will is subject to attack. The third sentence is new and is added in order definitely to specify the judgment or order from which the period of limitation begins. The last sentence also is new. In the greater number of cases, it is believed, the county where the probate of the will was allowed or denied would ordinarily be the county where suit would be instituted, and it is deemed best to provide that such should be the case in every instance.
Legislative Note.—The provision which, in effect, made a person under disability a party to a proceeding for probate in solemn form, if he was represented by a guardian ad litem, is omitted in conformity with §32, c. 77, Code 1923.
§12. Same, by Person Under Disability or Nonresident.—Notwithstanding the two preceding sections, any person interested who, at the time of the judgment or order is under the age of twenty-one years, or is a convict or an insane person, may file a bill in equity to impeach or establish the will, within one year after he becomes of age, or other disability ceases; and any person interested who, at that time, resided out of the State, or was proceeded against by publication, may, unless he actually appeared as a party or was personally summoned, file such bill within two years after the entry of such judgment or order.(Code 1849, c. 122, §35; Code 1860, c. 122, §35; Code 1868, c. 77, §29; 1882, c. 84, §33; Code 1923, c. 77, §33.)
Revisers’ Note.—Three new features are added to §33, c. 77, Code 1923: (a) Allowing an insane per son or a convict to file a bill in equity to impeach or establish a will within one year after the disability ty ceases; (b) making the right to file such bill by either an infant or insane person subject to such person’s being unrepresented in a proceeding for probate in solemn form by a guardian ad litem, duly appointed and appearing; and (c) limiting the time in any case to five years.
Legislative Note.—The changes mentioned in subdivisions (b) and (c) of the above revisers’ note are omitted.
§13. Probate of Foreign Will.—Where will relative to estate within this State has been proved without the same, an authenticated copy thereof and the certificate of probate thereof, may be offered for probate in this State. When such copy is so offered, the county court, or the clerk thereof in the vacation of the court, to which or to whom it is offered, shall presume, in the absence of evidence to the contrary, that the will was duly executed and admitted to probate as a will of personalty in the state or country of the testator’s domicile, and shall admit such copy to probate as a will of personalty in this State; and if it appears from such copy that the will was proved in the foreign court of probate to have been so executed as to be a valid will of land in this State by the laws thereof, such copy may be admitted to probate as a will of real estate. But any person interested, may, within two years from the time such authenticated copy is admitted to record, upon reasonable notice to the parties interested, have the order admitting the same set aside, upon due and satisfactory proof that such authenticated copy was not a true copy of such will, or that the probate of such will has been set aside by the court by which it was admitted to probate, or that such probate was improperly made.(Code 1849, c. 122, §26; Code 1860, c. 122, §26; Code 1868, c. 118, §5; 1882, c. 84, §25; 1883, c. 55, §25; Code 1923, c. 77, §25.)
Revisers’ Note.—The material change made in this section is in reducing the time within which an order admitting a foreign will to record may be set aside from five to two years. Some minor changes in wording are made for clarity.
§14. When Depositions Admissible.—The deposition of an attesting witness or other person may be read on the hearing of any proceeding to probate a will, when under the facts and circumstances the deposition of the witness would have been admissible on the trial of an action at law in the circuit court. In any proceeding in which there is no contest, the deposition may be taken at any time after the will is offered, for probate, and without notice to any person. Any such deposition may be in the form of an affidavit. In any case in which there is a contest, depositions may be taken at any time after the service of process upon the notice of contest, and after notice to all parties adversely interested as prescribed for the taking of depositions in actions at law, and the depositions shall be taken and certified and returned as required in other cases. In any case in which the deposition of an attesting witness is required, the clerk of the county court shall transmit the original will by some safe method of conveyance to an officer authorized to take depositions at the place where the deposition is to be taken. A copy of the will shall be made and filed by the clerk in his office before the original is sent out for the purpose of taking depositions. In any case, with the consent of all parties appearing, or of their counsel, a photostatic copy of the original will may be used in taking the deposition of an attesting witness instead of the original document. Any party may have compulsory process to compel the attendance of a witness as in any suit in the circuit court. In any proceeding to probate or record an authenticated copy of a will that has been probated in an other jurisdiction, depositions may be taken as in an original proceeding to probate.(Code 1849, c. 122, §27; Code 1860, c. 122, §27; Code 1868, c. 118, §6; 1882, c. 84, §27; Code 1923, c. 77, §27.)
Revisers’ Note.—Section 27, c. 77, Code 1923, is redrafted and modified as follows: (a) In any proceeding in which there is no contest a deposition may be taken in the form of an affidavit, and without notice; (b) for uniformity, it is provided that a deposition may be taken under any facts or circumstances which would make the deposition of the witness admissible on the trial of an action at law in the circuit court; (c) in case of a contest depositions are to be taken after notice and to be certified and re turned as in actions at law; (d) with the consent of the parties it is made permissible to use a photostatic copy of a will instead of the original in taking depositions of attesting witnesses; (e) the original will, if transmitted, is to be sent to the officer who shall take the deposition; (f) compulsory process is allowed to parties to compel the attendance of witnesses, although this was probably the law in the absence of this statute; and (g) provision is made for taking depositions in a proceeding to probate an authenticated copy of a foreign will. A somewhat similar provision to the last mentioned was in the Codes of 1849, 1860 and 1868, but in some manner was omitted in the Acts of 1882, possibly through oversight.
§15. Proof of Will While Testator Living.—Any or all of the attesting witnesses to any will, at the request of the testator, may make and subscribe an affidavit before any officer authorized to administer oaths, in or out of the State, stating such facts as would be required of them in testimony in court to establish and prove the will; and if the testator shall preserve such affidavits with the will, and the same are produced and offered in evidence when the will is offered for probate, they shall be admissible in evidence and have the same probative value as if the affiants had appeared in court or before the clerk thereof and testified to the facts stated in the affidavit: Provided, That such affidavits shall not be admissible in evidence in any case in which there is a contest over the will.
Revisers’ Note.—This section is new. It provides a simple, inexpensive manner for proving an uncontested will, as most wills go to probate without contest or objection. The affidavit is made in admissible in case of a contest and can therefore, injure no one.
§16. Statements of Particulars in Will Contests.—For the trial of any appeal under the provisions of sections seven and ten of this article, or for the trial of any issues to be submitted to a jury under the provisions of sections eight and eleven of this article, if good cause therefor be shown, and there be no unreasonable delay in applying for such order, the circuit court, or judge thereof in vacation, may order the contestants to file a particular statement of the facts expected to be proved by them at the trial, and may stay the proceedings until a reasonable time after such order is complied with; and in like manner after the contestants have filed such statement, if good cause therefor appear, and there be no unreasonable delay in applying for such order, such court, or judge thereof in vacation, may order the proponents of the will to file a particular statement of the facts expected to be proved by them at the trial; which statement, in either case, shall be made under the oath of the parties or their attorneys to the effect that the affiants believe the same will be supported by evidence at the trial. If either the contestants or the proponents fail to file any such statement when so required, or if any such statement after the same has been filed be adjudged insufficient in whole or in part, the court, or the judge thereof in vacation, may, as justice may require, grant further time for filing same, or permit the statement filed to be amended, or may, at the trial, exclude the evidence offered by the party in default as to any matter which he has so failed to state or has insufficiently stated. But no statement which is sufficient to inform the adverse parties of the nature and substance of the facts to be shown against or in support of the will shall be adjudged insufficient; nor shall any such statement in any manner affect the burden or order of proof imposed by law on the parties.
Revisers’ Note.—This section is new. It is thought that much expense and time, of both courts and litigants, can be saved, and the ends of justice promoted, in will contests by requiring the parties to file statements of the particular facts relied upon in opposing or in supporting the will. Such statements will serve to define the issues and to confine the proof to such issues, and to relieve the parties of the necessity of having at the trial witnesses to facts that are not to be controverted. The above section is drafted to accord with similar statements that are required in actions at law. See §§19 and 20, art. 4, c. 56.
§17. Probated Wills to be Recorded and Indexed.—Every will or authenticated copy of a will, when admitted to probate under the provisions of this article, shall be recorded by the clerk of the county court, and indexed by him in a general index of wills, and every such will or copy when recorded shall remain in his office except when removed therefrom by the order of a court, or under a subpoena duces tecum, or otherwise as provided by law.(Code 1849, c. 122, §37; Code 1860, c. 122, §37; Code 1868, c. 77, §30; 1872-3, c. 222, §30; 1882, c. 84, §34; Code 1923, c. 77, §34.)
Revisers’ Note.—A requirement that every will or authenticated copy of a will admitted to record be indexed in a general index of wills is added.
§18. Recording in Other Counties; Duty of Personal Representative or Devisee.—A duly certified copy of such will when probated, or of an authenticated copy of a foreign will admitted to record as a will of real estate, may be recorded in any other county of the State wherein there is any real estate devised by such will. It is the duty of the personal representative of the testator to record an authenticated copy of such will in each county in which any real estate is located of which the personal representative under the powers conferred by the will may make sale and disposition, and the duty of the devisee or devisees, claiming title under the will to any real estate of which the personal representative may not by the powers conferred in the will make sale and disposition, to cause such copy to be recorded in each county in which any such real estate is located.
Revisers’ Note.—This section is new and is for the purpose of providing a record of the chain of title to real estate passing under a will, in the office of the clerk of the county court of the county in which the real estate is located.
§19. Title of Bona Fide Purchasers of Real Estate From Heirs.—The title of a bona fide purchaser without notice and for valuable consideration from the heir or heirs at law of a person who has died heretofore, or who may die hereafter, having title to any real estate of inheritance in this State, shall not be affected by a devise of such real estate made by the decedent, unless within one year after the testator’s death the will devising the same, or if such will has been probated without this State, an authenticated copy thereof, shall be filed for probate before the court having jurisdiction for that purpose, or the clerk thereof, and shall afterwards be admitted to probate as a will of real estate and be recorded in the proper clerk’s office: Provided, however, That if any devisee under such will mentioned in this section is at the time of the testator’s death an infant, or insane, or a convict, the limitation created by this section shall not affect such infant, insane person or convict until after the expiration of one year from the removal of such disability.(1909, c. 49, §35; Code 1923, c. 77, §35.)
Revisers’ Note.—Besides numerous minor changes and the leaving out of some obsolete matter, the period of limitation provided by this section is reduced from three years to one year. See §5263, Code Va. 1919, for similar change.
Legislative Note.—A convict is included among the persons under disability, in conformity with similar provisions in this chapter and in art. 2, c. 2.