Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Canody v. Hamblin

Supreme Court of Virginia

July 19, 2018

ROBERT LEE CANODY, II
v.
CHERYL A. HAMBLIN, ET AL.

          FROM THE CIRCUIT COURT OF NELSON COUNTY Michael T. Garrett, Judge.

         PRESENT: All the Justices

          OPINION

          STEPHEN R. McCULLOUGH JUSTICE.

         Robert Lee Canody, II, challenges the trial court's order admitting a will to probate. More specifically, he contends that the court erred in considering testimony to establish the testamentary nature of the pages proffered for probate and erred in failing to require the proponent of the will to authenticate all three pages of the document. The trial court properly admitted testimony to refute the claim that the will was fraudulent and correctly declined to adopt a novel and more rigorous standard for admitting a will to probate. Therefore, we affirm its judgment.

         BACKGROUND

         After the clerk of court refused to probate a document offered as the last will and testament of Robert Lee Canody, his daughter, Cheryl A. Hamblin, petitioned the Circuit Court of Nelson County to have the document probated as her father's will. See Code § 64.2-445. The will consists of three computer-generated pages of the same font and font size. There are no page numbers, and no paragraphs are split between pages. It is dated March 30, 2014. There are staple holes that line up for all three pages. The will provides, among other things, that nothing is to go to Canody's estranged daughter Debra Ann Canody, that all of his property and possessions are to go to his daughter Cheryl, and that Cheryl as executor may not "extend" any property to Canody's son Robert until he pays off the debts he owes to his father.[1] Robert opposed the probate of the document.

         Testifying to the formalities of execution, April Keziah, an employee of the DuPont Community Credit Union, explained that she had come to know Canody as a customer and a friend over the past seven years. On April 1, 2014, Canody asked Keziah for the services of a notary, telling her he had a will he wanted notarized. She recalled the date, the fact that there were three pages, and that there were no initials on the pages. She was able to identify the last page of the will but she had no knowledge concerning the contents of the first two pages. Two other employees of the credit union signed as witnesses. Keziah told them they were witnessing a will. Canody signed first, then the witnesses signed. Kaziah affixed her notary seal and signature.

         Andrew Moomaw, one of the witnesses, also testified. He recalled Ms. Keziah asking him to witness a will and he did so. He too could not speak to the content of the first two pages, but recognized the last page as the one he signed. The signing only took a few minutes.

         Counsel for Robert raised the prospect that the first two pages of the will tendered for probate might have been substituted after the will was executed. As rebuttal to counsel's suggestion, Gene Hayden testified. Hayden was a close friend of Canody. Hayden testified that several weeks before Canody passed away, he asked Hayden to serve as executor of his estate. Hayden agreed. Canody then told Hayden about how he intended to dispose of his assets. In particular, Canody did not want his son Robert to have any money to pay for Robert's house. In addition, Canody wanted his daughter to have his land and his house, as well as the house's contents. Hayden never saw Canody's actual will.

         Following the hearing, counsel for Robert contended that Hayden's testimony was improperly admitted to establish the testamentary nature of a writing. In a thoughtful and thorough memorandum opinion, the trial court concluded that this testimony was admissible under the authority of Samuel v. Hunter, 122 Va. 636, 95 S.E. 399 (1918). The court further concluded that the will offered for probate met the statutory requirements for a valid will and that it contained the same three pages as those present at the time of execution. The trial court directed the clerk to admit the will to probate. This appeal followed.

         ANALYSIS

         I. The trial court properly admitted testimony concerning the decedent's testamentary plan when the genuineness of the will was put into question.

         Robert contends that the trial court improperly considered Hayden's testimony "to establish the testamentary nature of the pages proffered for probate."[2] Under settled law, "testamentary intent [must] be ascertained from the face of the paper, extrinsic evidence being not admissible either to prove or disprove it." Payne v. Rice, 210 Va. 514, 517, 171 S.E.2d 826, 828 (1970); see also Poindexter v. Jones, 200 Va. 372, 379, 106 S.E.2d 144, 148 (1958) ("The indicia of testamentary intent must be found in the paper itself, and evidence aliunde [from another source] to supply this vital and necessary characteristic is not permitted.").

         In Samuel, opponents of a will contended that it was forged. 122 Va. at 637, 95 S.E. at 399. They "offered a witness to prove certain statements of the testatrix made subsequent to the date of the alleged will." Id. Specifically, the party ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.