Swann v. Housman

Citations

• 90 Va. 816
• 20 S.E. 830
• 1894 Va. LEXIS 74

Syllabus

<p>1. Wills — Revocation—Case at bar. — An executor filed his bill to have his testator’s will construed', and submitted a writing executed by the latter, to wit: “ §1,000. This article is to signify that if Elliott Smith survive me, I bequeath him one thousand dollars of my property, free from any lien or incumbrance. To the above bequest I herewith set my hand and seal this first day of June, 1888. (Signed) Henry E. Smith. [Seal.]” Afterwards the testator made a will, dated December 2, 1889, disposing of his entire estate, and containing no reference to said writing or to Elliott Smith, which was duly probated : Held : Said writing was not a contract, but was a will, and was revoked by the subsequent testament.</p> <p>2. Idem — Contract—Evidence.-—One may contract to make a provision for another by will; but the evidence must be clear and convincing.</p> <p>3. Witnesses— Competency. — The widow of the testator held incompetent to prove such contract and to establish the debt against the estate of her late husband.</p> <p>4. Personal Representatives — Appeal—Individual grievance. — It is well settled that where an executor, as such, appeals from a decree which does not aggrieve the estate, the question cannot be considered whether he is aggrieved as an individual.</p> <p>5. Decedent’s Debts — Personalty—Realty.—The personal estate being the primary fund for paying decedent’s debts, it will not be exonerated by a charge on the realty, without plain intent to that effect.</p>