No. 25144 -- Janet Sue Lanham Stevens, Peggy Lanham
Salisbury, Betty Jean Bayes, and Patricia Miller Moyers v. Paul Douglas Casdorph, as
Executor of the Last Will and Testament o Homer Haskell Miller; Paul Douglas Casdorph,
Individually; and Patricia Eileen Casdorph
Workman, J., dissenting:
The majority once more takes a very
technocratic approach to the law, slavishly worshiping form over substance. In so doing,
they not only create a harsh and inequitable result wholly contrary to the indisputable
intent of Mr. Homer Haskell Miller, but also a rule of law that is against the spirit and
intent of our whole body of law relating to the making of wills.
There is absolutely no claim of
incapacity or fraud or undue influence, nor any allegation by any party that Mr. Miller
did not consciously, intentionally, and with full legal capacity convey his property as
specified in his will. The challenge to the will is based solely upon the allegation that
Mr. Miller did not comply with the requirement of West Virginia Code 41-1-3See footnote 1 1 that the signature
shall be made or the will acknowledged by the testator in the presence of at least two
competent witnesses, present at the same time. The lower court, in its very thorough
findings of fact, indicated that Mr. Miller had been transported to the bank by his nephew
Mr. Casdorph and the nephew's wife. Mr. Miller, disabled and confined to a wheelchair, was
a shareholder in the Shawnee Bank in Dunbar, West Virginia, with whom all those present
were personally familiar. When Mr. Miller executed his will in the bank lobby, the typed
will was placed on Ms. Pauley's desk, and Mr. Miller instructed Ms. Pauley that he wished
to have his will signed, witnessed, and acknowledged. After Mr. Miller's signature had
been placed upon the will with Ms. Pauley watching, Ms. Pauley walked the will over to the
tellers' area in the same small lobby of the bank. Ms. Pauley explained that Mr. Miller
wanted Ms. Waldron to sign the will as a witness. The same process was used to obtain the
signature of Ms. McGinn. Sitting in his wheelchair, Mr. Miller did not move from Ms.
Pauley's desk during the process of obtaining the witness signatures. The lower court
concluded that the will was valid and that Ms. Waldron and Ms. McGinn signed and
acknowledged the will "in the presence" of Mr. Miller.
In Wade v. Wade, 119 W. Va. 596, 195
S.E. 339 (1938), we addressed the validity of a will challenged for such technicalitiesSee footnote 2 2 and observed that
"a narrow, rigid construction of the statute should not be allowed to stand in the
way of right and justice, or be permitted to defeat a testator's disposition of his
property." 119 W. Va. at ___, 195 S.E.2d at ___. We upheld the validity of the
challenged will in Wade, noting that "each case must rest on its own facts and
circumstances to which the court must look to determine whether there was a subscribing by
the witnesses in the presence of the testator; that substantial compliance with the
statute is all that is required. . . ." Id. at ___, 195 S.E. at 340. A contrary
result, we emphasized, "would be based on illiberal and inflexible construction of
the statute, giving preeminence to letter and not to spirit, and resulting in the
thwarting of the intentions of testators even under circumstances where no possibility of
fraud or impropriety exists." Id. at ___, 195 S.E. at 341.
The majority's conclusion is precisely
what was envisioned and forewarned in 1938 by the drafters of the Wade opinion: illiberal
and inflexible construction, giving preeminence to the letter of the law and ignoring the
spirit of the entire body of testamentary law, resulting in the thwarting of Mr. Miller's
unequivocal wishes. In In re Estate of Shaff, 125 Or. 288, 266 P. 630 (1928), the court
encountered an argument that the attesting witness had not signed the will in the presence
of the testator. The evidence demonstrated that the witnesses had signed the document at
the request of the testator, and the court reasoned:
While it is the duty of the court[s] to observe carefully the spirit and intent of the statute, they will not adopt a strained and technical construction to defeat a will where the capacity and intention is plain and where by fair and reasonable intendment the statute may be held to have been complied with, and such is the case here.
Id. at 298, 266 P. 630.
We also specified, in syllabus point
two of Wade, that "[w]hether witnesses to a will have subscribed the same in the
presence of the testator and of each other, as required by statute, is a question of fact
to be determined in each case from the circumstances thereof." Summary judgment is
inappropriate where there is a dispute regarding the conclusions to be drawn from
evidentiary facts. Williams v. Precision Coil, Inc., 194 W. Va. ___, 59, 459 S.E.2d ___,
336. Thus, the majority could have legitimately concluded that summary judgment was
inappropriate and that the issue of compliance with the statute was a question of fact to
be determined by the jury. I could have accepted such reasoning far more readily than that
employed by the majority in its swift eradication of Mr. Miller's legal right to convey
his estate in the manner of his own conscious choosing.
The majority strains the logical
definition of "in the presence" as used in the operative statute. The legal
concept of "presence" in this context encompasses far more than simply watching
the signing of the will, which is the technical, narrow interpretation of the word
apparently relied upon by the majority. Where the attestation of the will by the witnesses
occurred within the same room as the testator, there is, at the very minimum, prima facie
evidence that the attestation occurred within the "presence" of the testator.
See 20 Michie's Jurisprudence, Wills § 34 (1993); Annotation, What constitutes the
presence of the testator in the witnessing of his will, 75 A.L.R.2d 318 (1961).
In re Demaris' Estate, 110 P.2d 571
(1941), involved a challenge to a will signed by a very ill gentleman, witnessed in
another room by a physician and his wife thirty minutes after the testator signed the
will. The court grappled with the question of whether the witnesses had complied with the
statutory requirement that the witnesses sign in the presence of the testator. Id. at ___.
The court rejected a strict interpretation of the language of the statute, recognizing
that the purpose of requiring the presence of the witnesses was to protect a testator
against substitution and fraud. Id. at ___. Rather, the court determined that
"presence" did not demand that the witnesses sign within the sight of the
testator, if other senses would enable the testator to know that the witnesses were near
and to understand what the witnesses were doing. Id. The court concluded that "the
circumstances repel any thought of fraud and speak cogently of the integrity of the
instrument under review. The signatures of all three persons are conceded. The
circumstances of the attestation are free from dispute." 110 P.2d at ___.
To hold the will invalid on a strictly
technical flaw would "be to observe the letter of the statute as interpreted
strictly, and fail to give heed to the statute's obvious purpose. Thus, the statute would
be turned against those for whose protection it had been written."
110 P.2d at ___.
The majority embraces the line of least
resistance. The easy, most convenient answer is to say that the formal, technical
requirements have not been met and that the will is therefore invalid. End of inquiry. Yet
that result is patently absurd. That manner of statutory application is inconsistent with
the underlying purposes of the statute. Where a statute is enacted to protect and sanctify
the execution of a will to prevent substitution or fraud, this Court's application of that
statute should further such underlying policy, not impede it. When, in our efforts to
strictly apply legislative language, we abandon common sense and reason in favor of
technicalities, we are the ones committing the injustice.
I am authorized to state that Justice Maynard joins in this dissent.
Footnote: 11 West Virginia Code § 43-1-3 provides as follows:
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
Footnote: 22 We concluded as follows in syllabus point one of Wade:.
Where a testator acknowledges a will and his signature thereto in the presence of two competent witnesses, one of whom then subscribes his name, the other or first witness, having already subscribed the will in the presence of the testator but out of the presence of the second witness, may acknowledge his signature in the presence of the testator and the second witness, and such acknowledgment, if there be no indicia of fraud or misunderstanding in the proceeding, will be deemed a signing by the first witness within the requirement of Code, 41-1-3, that the witnesses must subscribe their names in the presence of the testator and of each other.