Johnson v. Cauley

Present: 	All the Justices
PEGGY H. JOHNSON, ET AL.
v. 	Record No. 002058 	OPINION BY JUSTICE ELIZABETH B. LACY
June 8, 2001
GENEVA H. CAULEY, ET AL.
FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
Rodham T. Delk, Jr., Judge
In this appeal, we consider whether the trial court
properly found that missing original testamentary documents
were in the possession of the drafting attorney and were
inaccessible to the testator, giving rise to a presumption
that the documents were lost, not revoked.
Josephine S. Howell executed a will in 1985 and three
codicils in 1987, 1990, and 1992. 	Upon her death in 1999, the
original of the 1990 codicil was discovered in a safe in
Howell's former home, but only copies of the will and the
other two codicils were found. 	Three of her daughters, Amelia
H. Spivey, Lynda H. Bond, and Geneva H. Cauley, and their
children (collectively "Spivey") brought suit to establish the
missing original documents as lost and to probate a copy of
the missing will and codicils along with the original 1990
codicil. 	A fourth daughter, Peggy H. Johnson, and her
children (collectively "Johnson") filed a counterclaim,
charging that the missing documents had been destroyed by
Howell and were therefore revoked, not lost.

After an ore tenus hearing, the trial court found that
the evidence conclusively established that Howell executed
each of her testamentary documents in the offices of her
attorney, J. Louis Rawls, Jr., pursuant to a comprehensive
estate plan. 	Furthermore, the trial court held that the
evidence clearly established that the missing documents "were
last specifically known to be in the possession of Mr. Rawls
at his law office." 	Rawls predeceased Howell, and the current
members of Rawls' law practice did not know what happened to
the original documents.
Based on the available evidence, the trial court
considered the documents to be in the possession of the
attorney and not in Howell's possession at her death, and
found, as a matter of fact, that Howell had no "reasonable
possibility" of access to the will and codicils while they
were kept at the law offices. 	Because Howell had neither
possession of, nor access to, her documents, the trial court
applied the presumption that the documents had been lost and
concluded that the defendants had not met their burden to
overcome that presumption with clear and convincing evidence
that the documents had been revoked. 	Accordingly, the trial
court entered an order establishing the copies of the 1985
will, the 1987 and 1992 codicils, and the original 1990
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codicil as the final will and codicils of Howell. 	We awarded
Johnson an appeal.
Johnson raises four assignments of error. 	These
assignments challenge the trial court's findings that the
documents were in the possession of Howell's attorney and that
Howell had no access to those documents. 	Johnson also asserts
that in determining whether Howell had access to the documents
in question, the trial court used an erroneous test.
I.
We begin by reviewing familiar principles applicable in
instances when original testamentary documents are missing.
Under such circumstances, two different presumptions are
available, depending on the last known location of the missing
documents. 	First, if an executed will was known to be in the
testator's custody but cannot be found after death, there is a
presumption that it was destroyed by the testator animo
revocandi, that is with the intention to revoke. 	Under these
circumstances, the proponents of a copy of the will must show
by clear and convincing evidence that the will was simply lost
and not revoked by the testator. 	Second, if the evidence
shows that after execution the will was not in the possession
of the testator and not accessible to her, then a presumption
of loss arises. 	The presumption of loss must then be rebutted
by clear and convincing evidence that the will was revoked by
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the testator. 	Harris v. Harris, 216 Va. 716, 719, 222 S.E.2d
543, 545 (1976); Ballard v. Cox, 191 Va. 654, 659-60, 62
S.E.2d 1, 3 (1950). 	Which presumption is applied in a
specific case depends on the threshold factual determination
of whether the will was in the possession of the testator at
death and, if not, whether the testator nevertheless had
access to it prior to death.
II.
In this case, the trial court determined as a threshold
factual matter that Howell had entrusted the custody of her
original will and codicils to her attorney and that Howell did
not have access to them thereafter. 	Johnson contends that the
trial court erred in both of these findings. 	First, Johnson
asserts that the conclusion that the testamentary documents
were in the possession of Howell's attorney "flies in the
face" of the evidence that the only remaining original
document was found in Howell's former home, that no original
documents were found in Rawls' law offices, that originals of
prior wills and codicils were kept by Howell personally, that
members of Rawls' firm testified that they had never lost an
original testamentary document in their possession, and that,
although the records of the firm showed the firm's possession
of testamentary documents, the records did not show that these
documents were in the firm's possession.
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As a trier of fact, a chancellor evaluates the testimony
and credibility of witnesses. 	Advanced Marine Enters., Inc.
v. PRC Inc., 256 Va. 106, 120, 501 S.E.2d 148, 156 (1998).
Thus, a finding of fact, made by a chancellor who has heard
the evidence ore tenus, carries the weight of a jury verdict,
and will not be disturbed unless plainly wrong or without
evidence to support it. 	Va. Elec. & Power Co. v. Buchwalter,
228 Va. 684, 689, 325 S.E.2d 95, 97 (1985). 	Here, in addition
to the evidence cited by Johnson, there was testimony that
Howell stated to others that her testamentary documents were
at Rawls' offices and notations on copies of these documents
indicated that the originals were at Rawls' offices. 	In light
of this evidence, we cannot say that the trial court's finding
that the documents were in Rawls' possession was plainly wrong
or without evidence to support it.
III.
Johnson next argues that even if the testamentary
documents were in the possession of Rawls' law firm, the trial
court erred in finding that Howell did not have access to
them. 	We disagree with Johnson.
First, Johnson argues that in considering Howell's
"accessibility" to the testamentary documents, the trial court
required a "reasonable possibility of access" rather than
simply a "possibility of access" as set out in our prior
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cases. 	Harris, 216 Va. at 719, 222 S.E.2d at 545. 	Johnson
claims that, by requiring proof that Howell had a "reasonable
possibility" of access, the trial court transformed the
standard from one of possibility to one of probability.
Johnson's argument is one of semantics. 	The trial
court's addition of the word "reasonable" was superfluous and
did not impose a higher standard than that required by Harris.
To the extent "reasonable" modifies "possibility," it
restricts the circumstances of access to those that are
"reasonable" rather than "unreasonable." 	A "reasonable
possibility" does not require probability.
Finally, Johnson argues that testamentary documents left
with an attorney as custodian "obviously are accessible to
clients," and, therefore, unless the custodial attorney
testifies that the testator did not claim the documents or
that the attorney lost or destroyed them, a testator must be
considered to have access to the documents. 	Such a definition
of access, however, reflects the legal right of the testator
to retrieve her documents but does not address the practical
acts necessary to access testamentary documents for purposes
of revoking them or reasserting physical control over them.
For example, in Ballard, the testatrix directed her
attorney to mail the original will to her sister, Miss
Ballard, who in turn put the will in her safe deposit box
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where it remained until the testatrix's death. 	Miss Ballard
delivered the original will to the deceased testatrix's
husband, who denied having received the will. 	Miss Ballard
sought to have a copy of the will admitted to probate. 	191
Va. at 658-59, 62 S.E.2d at 3.
In admitting the copy to probate, the Court found that
the evidence clearly showed that after executing the will, it
was never again in the possession of the testatrix and the
presumption of loss arose. 	Id. at 659-60, 62 S.E.2d at 3.
Clearly, the testatrix had "access" to her will in the sense
that she had the legal right to recover possession of it from
her sister. 	Nevertheless, the facts indicated that the
testatrix was in the hospital when she made her will and that
she died approximately four months later. 	The lack of access
necessary for the imposition of the presumption of loss was
based on the factual record developed. 	It was not dependent
on the testimony of any single witness or a generalized right
of access to one's documents.
Thus, for purposes of determining whether the presumption
of loss applies, a testator's access to testamentary documents
entrusted to a custodian is a matter to be resolved by the
fact finder based on the evidence produced.
This principle is consistent with cases from other
jurisdictions that have addressed the issue. 	After
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establishing that a will had been left in the hands of a
custodian, those courts conducted a factual inquiry to
determine whether the testator had access to the documents;
the legal right to access the documents was not determinative.
See, e.g., In re Estate of Mammana, 564 A.2d 978, 982 (Pa.
Super. Ct. 1989); Thompson v. Dobbs, 234 S.W.2d 939, 941 (Tex.
Civ. App. 1950); In re Pinney's Will, 72 N.Y.S.2d 895, 896
(N.Y. Surr. Ct. 1947); see also John P. Ludington, Annotation,
Sufficiency of Evidence That Will Was Not Accessible to
Testator for Destruction, in Proceeding To Establish Lost
Will, 86 A.L.R.3d 980, § 8 (1978).
This principle is also consistent with our decision in
Harris, in which we stated, "[i]f the possibility of access is
shown that is controlling." 	216 Va. at 719, 222 S.E.2d at
545. 	In Harris, the testator did not entrust his will to a
custodian. 	The daughter who sought to have a copy of the will
probated testified that, unknown to her father, she took his
will to the second floor of his home, put it in her bureau
drawer, and subsequently discovered it was missing. 	Sometime
later the testator was transferred to a nursing home where he
died. 	Id. at 718, 222 S.E.2d at 544. 	We concluded that the
testator had access to the will because the will was in his
home and he was physically active before he entered the
nursing home "long after [his daughter] discovered that the
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will was missing." 	Id. at 720, 222 S.E.2d at 545. 	The
determination of accessibility in Harris, as in Ballard, was
based on a consideration of the facts, not the legal
entitlement of the testator to possession of his will.
Having rejected Johnson's contention that access was
established in this case because the testator had a legal
right to repossess her documents or because there was no
affirmative testimony by the custodial attorney that the
documents were either retrieved by the testator or lost or
destroyed by the attorney, we now turn to Johnson's argument
that the record was insufficient to show lack of access.
Johnson relies primarily on the fact that Howell enjoyed good
health, was able to go to Rawls' law offices by herself, and
was not generally known by sight to Rawls' staff as evidence
that supports a finding of access. 	In addition, Johnson cites
testimony that the testator expressed concern about the
fairness of her estate plan. 	However, the evidence in this
case also shows that Howell entrusted the documents to Rawls,
knew her documents were with Rawls, intended that they remain
there, and commented that she had "everything on paper with my
lawyers."
As we have already said, the trial court, as the finder
of fact, was entitled to weigh the evidence and credibility of
the witnesses. 	We cannot set aside a finding of fact unless
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it is clearly erroneous or without evidentiary support. 	See
Advanced Marine and Va. Elec., supra. 	We agree with the trial
court that, on this record, only pure speculation would
support a finding that Howell exercised her ability to access
the missing will and codicils and retrieved them from Rawls'
law offices after leaving them there in 1992. 	Accordingly, we
conclude that the record supports the trial court's
determination that the missing testamentary documents were not
in the possession of the testator and that she did not have
access to them.
Thus, the documents were properly presumed lost and the
burden shifted to Johnson to prove that Howell revoked the
missing will and codicils by clear and convincing evidence.
Johnson has not assigned error to the trial court's conclusion
that Johnson did not produce clear and convincing evidence of
revocation to rebut the presumption of loss. 	Accordingly, we
will affirm the judgment of the trial court.*
Affirmed.
* In light of this holding we need not address Spivey's
assignment of cross-error.
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