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PRESENT:    All the Justices
TAMARA MOWBRAY BERRY
v.    Record No.  051161      OPINION BY JUSTICE BARBARA MILANO KEENAN
March  3,  2006
ESTHER MADDOX TRIBLE, ET AL.
FROM THE CIRCUIT COURT OF FAUQUIER COUNTY
Burke F. McCahill, Judge
In this appeal, we consider whether the circuit court erred
in confirming a jury verdict that a handwritten phrase and
notation, made on a typewritten draft of a will containing many
other handwritten entries, constituted a valid holographic will.
This issue arises out of a will contest between a niece and
a sister of the decedent, Louise Trible St. Martin  (Louise).
Tamara Mowbray Berry  (Tamara), Louise’s niece, claimed that an
attested document executed in  1993  (the  1993 will), which
ultimately resulted in Tamara being the executor and sole
beneficiary of Louise’s estate, was Louise’s last will and
testament.    Louise’s sister, Esther Maddox Trible  (Esther),
asserted that Louise had executed a holographic will in  1997
leaving her entire estate to Esther.    The alleged holographic
will began with a handwritten phrase,  “I Give and bequeath all,”
which appeared near the top of one page of a seven-page
typewritten draft of a will drawn by Louise’s attorney  (the  1997
document).    This phrase purportedly was connected by an arrow to




the handwritten notation  “Esther Maddox Trible” near the middle
of the same page and signed  “Louise Trible St. Martin” at the
bottom of that page.    Esther argued that the combined words,  “I
Give and bequeath all  [arrow] Esther Maddox Trible  [signed]
Louise Trible St. Martin,” was Louise’s last will and testament.
Louise died in March  2002.    A few months later, Tamara
submitted the  1993 will for probate in the circuit court.
Esther, in turn, filed a bill of complaint to establish a lost
will, presenting a facsimile copy of the single page of the  1997
document described above.    This copy has been reproduced and is
appended to this opinion.
By agreement of the parties, the circuit court consolidated
the probate and lost will issues for trial.    The court granted
Esther’s request for a jury trial on the issues arising under
the court’s probate jurisdiction.    The court also ordered that
the lost will issues would be submitted to the jury as an issue
out of chancery under the court’s equity jurisdiction.
Additionally, the court appointed a guardian ad litem to
represent the interests of Louise’s nephew, Mark Trible, a minor
child who had a potential interest in the estate.
Before trial, the circuit court held that the  1993 will was
executed in compliance with the statute of wills, Code  §  64.1-
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49.    The court accordingly awarded Tamara partial summary
judgment on her probate petition.1
At trial, the evidence showed that in her  1993 will, Louise
left her entire estate to her husband, Robert Louis St. Martin
(Robert), and if he predeceased her, to Tamara.    Robert died in
June  1997.
For many years, Louise had enjoyed a close relationship
with Tamara that began during Tamara’s childhood.    After
Robert’s death, Tamara visited Louise often, helping her care
for her pets and delivering groceries and medications to her.
Tamara grew worried about Louise’s health and became
concerned about her behavior, which Tamara considered  “erratic.”
Louise and Tamara had several bitter arguments concerning
Louise’s ability to care for herself, which caused their
personal relationship to deteriorate.    Louise later confronted
Tamara and told her to stop involving herself in Louise’s
affairs.
In September  1997, Louise became ill and was admitted to a
hospital.    While in the hospital, Louise telephoned her lawyer,
Mildred F. Slater, who had prepared Louise’s  1993 will.    Louise
informed Slater that Robert had passed away and asked Slater to
draft a new will.    According to Slater, Louise stated that she
1 Esther does not challenge the circuit court’s holding that
the  1993 document met the requirements for a valid attested
will.
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wanted to leave her entire estate to Esther and, if Esther
predeceased Louise, to have her estate divided among all
Louise’s nieces and nephews.    Slater also testified that Louise
said she wanted Tamara stricken from the will.    Slater prepared
the requested document and sent a facsimile copy of the
typewritten draft will to Louise’s attending nurse at the
hospital.
A few weeks later, Louise’s nurse sent Slater a facsimile
copy of the typewritten draft that had been altered to include
several handwritten changes and additions on each page.    The
facsimile copy Slater received was missing a page from Slater’s
original draft.    Additionally, section headings were renumbered
and pages were rearranged.
The handwritten portions of the document were in both
printed and cursive form.    The handwritten entries included
stricken portions of typewritten text, additions, and arrows
apparently connecting some of the handwritten notations to parts
of the typewritten draft.    Louise’s living nieces and nephews,
including Tamara, also were listed in the handwritten entries.
Additionally, the portion of the document naming Slater as
Louise’s executor was struck, and Esther’s name was handwritten
in its place.    Further, at the bottom of each page appeared the
signature,  “Louise Trible St. Martin.”
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The greatest number of handwritten changes in the
reorganized document appeared on page seven, which originally
was the second page of the typewritten draft prepared by Slater.
At the top of that page were the handwritten words,
“Article  # Two.”    Printed beneath and to the right of that
notation was the phrase  “I Give and bequeath all.”    Under the
“d” in the word  “and” was the tip of an arrow.    The tail of the
arrow was about an inch lower and ended both next to the
handwritten words  “Esther Maddox Trible” and immediately above
the first letter of the typed phrase that began  “my property,
real and personal, tangible and intangible  .  .  .                  .”
There were other handwritten changes made to this page of
the document.    A provision leaving tangible personal property to
Irene Trible, the former wife of one of Louise’s nephews, was
struck.    The handwritten phrase  “want everything sold at
auction” was written next to a typed sentence of the draft
describing the disposition of Louise’s estate should Esther
predecease Louise.    Addresses of nieces and nephews were written
in the margins and connected to typed portions of the document
by numerous arrows.
Because Slater had difficulty reading the handwritten
entries on the document transmitted to her, she contacted Louise
by telephone and also wrote her a letter asking for her
assistance in making the corrections so that the will could be
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redrafted and executed.    Louise refused to allow Slater to make
any changes to the document during their conversation and did
not respond to Slater’s letter.    Slater had no further contact
with Louise.
Louise’s relationship with Tamara deteriorated further
after Louise was released from the hospital.    In September  1999,
Tamara accepted a job transfer and moved with her family to
North Carolina.    Tamara and Louise stayed in occasional contact
but never saw each other again.
After Louise’s death, some friends and family members,
including Esther and Tamara, went to Louise’s home to help clean
the house, which was in complete disarray.    Despite a thorough
search of the home, they did not find either the  1993 will or
the  1997 document.
Because a will could not be located, Esther asked Marshall
National Bank to serve as the administrator of Louise’s estate.
The Bank qualified as administrator and sent a trust officer to
Louise’s home to search for evidence of Louise’s assets.    While
examining boxes containing Louise’s papers, the trust officer
found an envelope containing the original  1993 will.    Although
the original  1997 document was not found, Esther eventually
obtained the facsimile copy from Slater, who had retained it
among her records.
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At the conclusion of the evidence, Tamara moved to strike
Esther’s evidence arguing, among other things, that the  1997
document was not a valid will but merely a draft document that
had been edited by Louise and returned to her attorney.    The
circuit court denied Tamara’s motion and submitted the case to
the jury.
The jury was asked to decide two questions.    First, the
jury was asked whether the handwritten phrase,  “I Give and
bequeath all  [arrow] Esther Maddox Trible  [signed] Louise Trible
St. Martin,” was Louise’s will.    In response, the jury found
that this handwriting on the  1997 document was Louise’s will.
Second, the jury was asked to determine whether Louise later
revoked the  1997 writing.    On this question, the jury found that
Louise did not revoke the  1997 writing.2
The circuit court entered a decree in accordance with both
these verdicts and further held the  1993 will is  “revoked to the
extent that the  1997 will is inconsistent therewith.”
Additionally, the court concluded that Tamara and Esther should
2 The circuit court previously had ruled that the first
question would be submitted to the jury for a verdict under the
court’s probate jurisdiction, while the second question would be
considered by the jury as an issue out of chancery under the
court’s equity jurisdiction.    Based on our holding in this
appeal, however, we do not reach the issue whether the court
erred in placing the different issues before the jury in this
manner.
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each be responsible for paying one-half the fees of the guardian
ad litem and entered a decree reflecting this determination.
Tamara filed a motion to set aside the verdict, again
arguing that the  1997 document was not a valid will but was
merely an edited document containing handwriting that could not
be understood apart from the typewritten language.    The circuit
court denied Tamara’s motion.
Tamara appeals from the circuit court’s final decree that
the selected handwriting from the  1997 document was a valid
will.    Esther assigns cross-error to the court’s holding
requiring her to pay one-half the fees of the guardian ad litem.
Tamara argues that the handwritten phrase,  “I Give and
bequeath all  [arrow] Esther Maddox Trible  [signed] Louise Trible
St. Martin,” proffered by Esther as Louise’s last will and
testament, does not meet the requirements for a valid
holographic will.    Tamara asserts that these handwritten
notations cannot be fully understood without considering the
typewritten text and the other substantive handwritten entries
appearing on the draft.
Tamara also observes that Louise signed each page of the
1997 document, not just the page on which the proffered
handwriting appears, indicating that she intended the contents
of the entire document to be her will.    Thus, Tamara maintains
that the face of the  1997 document shows that Louise was merely
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attempting to edit a typewritten draft, which could not qualify
as a valid will because it was not wholly in Louise’s
handwriting and was not attested.
In response, Esther argues that the proffered handwritten
phrase and notation, along with Louise’s signature at the bottom
of the page, constitute a valid will because they are  “wholly in
the handwriting of the testator and  [are] complete” without need
to consider the typewritten portions of the document.    Esther
also asserts that Louise’s testamentary intent is established by
the words  “[g]ive” and  “bequeath.”    Additionally, Esther
contends that the  “surplusage” theory of holographic wills
permitted the jury and court to disregard the typewritten
portions of Slater’s draft will and to focus solely on the
handwritten phrase proffered by Esther.    We disagree with
Esther’s arguments.
The requirements for a holographic will are set forth in
Virginia’s statute of wills, Code  §  64.1-49.    A holographic will
must be made wholly in the testator’s handwriting, and two
disinterested witnesses must identify the handwriting as that of
the testator.    Id.    The testator must sign the will or have
someone in her presence sign the instrument at her direction.
Id.   The signed name must appear on the face of the document in
a manner showing that the name is intended as a signature.    Id.;
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Kidd v. Gunter,  262 Va.  442,  445,  551 S.E.2d  646,  648  (2001);
Slate v. Titmus,  238 Va.  557,  560,  385 S.E.2d  590,  591  (1989).
These statutory requirements are not intended to limit the
power of a testator but to protect the testator’s exercise of
that power.    Bell v. Timmins,  190 Va.  648,  657,  58 S.E.2d  55,  60
(1950); Moon v. Norvell,  184 Va.  842,  849,  36 S.E.2d  632,  634
(1946).    In establishing these requirements, the statute is
designed to prevent mistakes, imposition, fraud, and deception.
Id.    However, the safeguards of the statute are not designed to
make the execution of wills a trap for the testator.    Robinson
v. Ward,  239 Va.  36,  42,  387 S.E.2d  735,  738  (1990); Bell,  190
Va. at  657,  58 S.E.2d at  59.    Therefore, we give the statute  “a
sound and fair construction” with uniform insistence on
“substantial compliance” with the statutory requirements.
Robinson,  239 Va. at  42,  387 S.E.2d at  738  (quoting Bell,  190
Va. at  657,  58 S.E.2d at  59-60).
A holographic will, like any will, must manifest the
testator’s intent of making a last and final disposition of her
property.    Moon,  184 Va. at  849-50,  36 S.E.2d at  635.    This
testamentary intent need not be expressed in formal language in
the will, provided that the face of the instrument establishes
such intent.    Id. at  850,  36 S.E.2d at  635.
In requiring that a holographic will be  “wholly in the
handwriting of the testator,” the General Assembly did not
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contemplate that the word  “wholly” should be applied in its
absolute sense.    See Bell,  190 Va. at  654,  58 S.E.2d at  58.    We
illustrated this point in Bell when considering a proffered will
that was wholly in the testator’s handwriting except for certain
changes in spelling, punctuation, and phrasing that did not
affect the content of the document and were made with the
consent of the testator.    Id. at  652,  58 S.E.2d at  57.    We
confirmed the will’s validity, holding that alterations to a
handwritten will that do not affect the substance of the will,
and have no impact on the will’s testamentary intent, do not
invalidate a testator’s holograph.    Id. at  662-64,  58 S.E.2d at
62-63.
In contrast to the facts in Bell, we are presented here
with a proffered holographic writing containing only a portion
of the testator’s handwritten entries, which were made on the
face of a typewritten document.    In resolving whether this
selected handwritten phrase and notation constitute a valid
will, we find that our decision in Moon is particularly
instructive.    There, the testator wrote a holographic will on
the reverse side of a typewritten will that had been superseded
by another duly attested will.    The testator struck through all
the printed material in the body of the superseded typewritten
will except for an article dealing with payment of funeral
expenses and debts.    Moon,  184 Va. at  846-47,  36 S.E.2d at  633-
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34.    On the reverse side of this former will, the testator wrote
in her own hand another will.
We held that the presence of typewritten material on paper
used to draft a holographic instrument does not destroy the
effect of the holographic instrument as a will, provided that
the typewritten material is not part of the handwritten
instrument and is not referenced directly or indirectly in the
handwritten instrument.    Id. at  850-51,  36 S.E.2d at  635.    We
confirmed the holographic entries as the testator’s last will
and disregarded the typewritten material on the other side of
the document in its entirety.    We noted that in the holographic
entries, the testator disposed of her entire estate and named
the parties and the amount of property she wanted each to
receive.    We held that her writing left no uncertainty
concerning her  “dispositive intentions.”    Id. at  849,  36 S.E.2d
at  635.
In further support of our holding, we observed that the
handwritten manuscript was not interwoven with the typewritten
language and did not directly follow the typewriting, but
appeared on the reverse side of the typewritten document.    Id.
at  851,  36 S.E.2d at  635-36.    We also noted that the content of
the handwritten instrument did not suggest that it was a
continuation of any portion of the typewritten document.    Id. at
852,  36 S.E.2d at  636.
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In two other decisions, we confirmed the validity of
holographic instruments that consisted of only a few words
followed by a signature.    In Grimes v. Crouch,  175 Va.  126,  129,
7 S.E.2d  115,  116  (1940), the deceased wrote in his own hand,
“Ever thing left to sister for life times.”    His signature
appeared immediately below this text.
In Gooch v. Gooch,  134 Va.  21,  29,  113 S.E.  873,  876
(1922), we confirmed a decree admitting to probate a codicil
written in the deceased’s handwriting and signed by him directly
below the following handwritten words:  “My will is made in favor
of my wife, Loulie M. Gooch  .  .  .                                     .”      This handwritten entry
appeared on a printed will form provided by the decedent’s
fraternal organization.3    Id. at  25-27,  113 S.E. at  874-75.
Although these handwritten entries in Grimes and Gooch were
very brief, they constituted all the handwriting of the testator
that appeared on the documents under review.    Further, the
handwritten language was self-contained and could be understood
without reference to the typewritten text.    Thus, our holdings
3 We note that the assignments of error in Gooch did not
challenge the determination made at trial that these printed
portions of the form could be disregarded.    Thus, the effect of
that unrelated printed material was not discussed in our
holding.    See  134 Va. at  29,  113 S.E. at  876.    The assignments
of error in Gooch also did not challenge the admission at trial
of an attestation clause to probate that was not wholly in the
testator’s handwriting.                                                  134 Va. at  30,  113 S.E. at  876.
Nevertheless, in dictum, we stated that the admission of this
clause was harmless error because the handwriting of the
testator was  “complete and entire in itself.”    Id.
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that these holographic entries were valid instruments in and of
themselves did not result from the exclusion of any other
handwritten entries made by the testator.
We also have confirmed the validity of a holographic will
written on the reverse side of a hardware store receipt.    In
that case, Bailey v. Kerns,  246 Va.  158,  160-63,  431 S.E.2d  312,
313-15  (1993), the printed material on the receipt was not a
factor in our analysis of the proffered will because the content
of the receipt bore no relationship to the handwritten entries,
which we considered in their entirety.
Two fundamental principles characterize our holdings
regarding the holographic wills approved in the above decisions.
First, in each of those decisions, we considered all the
holographic entries made by the testator, rather than only
selected portions of those writings advanced by the will’s
proponent.    Second, as exemplified by our analysis in Moon, we
were not required to consider the printed material on those
documents as part of the will because the handwritten entries
were  “not interwoven with the typewriting,” and did not continue
from the typewriting in physical form, by reference, or in
sequence of thought.                                                    184 Va. at  851-52,  36 S.E.2d at  635-36.
These distinctions are critical to our analysis of the
present case.    Here, Esther asks us to disregard many of
Louise’s substantive handwritten entries that are plainly
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related to the typewritten text.    At the top of the page on
which the proffered holograph appears, Louise wrote
“Article  # Two,” thereby suggesting that both the handwritten
and typewritten material below were part of a larger document.
On that same page, Louise connected to the typewritten text, by
lines and arrows, other handwriting supplementing the
substantive typewritten provisions for contingent beneficiaries,
as well as a direction that she  “want[ed] everything sold at
auction.”
We also observe that the three portions of text that form
the proffered holographic will are selected from three separate
locations on the one page.    Louise’s signature, however, appears
at the bottom of that page, which contains other substantive
portions of handwritten and typewritten text.    Thus, we perceive
no basis for concluding that Louise intended that her signature
on this page apply only to the isolated phrase propounded by
Esther.
Esther also asks us to disregard the five other pages of
typewritten text that Louise returned to Mildred Slater.    We are
unable to do so, however, because Louise signed the bottom of
each page and made substantive changes to the typewritten text
on several of those pages.    Louise’s signature at the bottom of
each page also leaves unresolved whether she intended that her
signatures validate all the typed and handwritten material
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appearing above each signature, or whether she intended that the
signatures merely verify her changes to the document that she
contemplated her attorney would redraft.    In addition, Louise’s
signature at the end of the document, which appears immediately
after a typewritten reference to a will  “consisting of seven  (7)
typewritten pages,” is not consistent with Esther’s contention
that the proffered holograph alone was Louise’s last will.
Acceptance of Esther’s argument would require us to discard
the two principles discussed above that have guided so many of
our decisions on holographic wills.    We are unwilling to do so
and, instead, take this opportunity to reaffirm those basic
principles.
We hold that a holographic will may only be established
upon consideration of all handwritten entries made by the
testator on a document, not upon consideration of only portions
of those handwritten entries selected by the will’s proponent.
We articulate this principle because a contrary conclusion would
allow a proponent to select only those portions of handwriting
favorable to her position, effectively permitting the proponent
to rewrite the will.    We further hold that a purported
holographic will is invalid if the handwritten entries are
interwoven with or joined to the typewritten material on the
document, or continue from the typewritten material in physical
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form, by reference, or in sequence of thought.    See Moon,  184
Va. at  851-52,  36 S.E.2d at  635-36.
Applying these principles, we conclude that the proffered
holographic will fails as a matter of law because Louise’s
handwritten language considered as a whole is not self-contained
such that it can be understood without reference to the
typewritten text.    Rather, that handwritten language is
interwoven with the text, both physically and in sequence of
thought, throughout the document.
Our conclusion is not altered by Esther’s contention that
the entries she did not proffer as part of the will may be
disregarded as mere  “surplusage.”    The  “surplusage” theory
generally is limited to the striking of typewritten material,
when the remaining portion of an instrument that is handwritten
has meaning standing alone.    See In re Estate of Teubert,  298
S.E.2d  456,  459-60  (W. Va.  1982); see also  2 Page on the Law of
Wills  (rev.  2003)  §  20.5 at  279-80  (“the surplusage test
[requires that] the non-holographic material  [be] stricken and
the remainder of the instrument admitted to probate if the
remaining provisions made sense standing alone”).    Here,
however, Esther mistakenly asks that we apply this theory to
numerous handwritten, as well as typewritten, entries.
Moreover, we are unable to apply the theory to disregard the
typewritten entries that Esther seeks to exclude from
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consideration because, in the absence of the typewritten text,
Louise’s handwritten entries are either ambiguous or fragmented
and unintelligible.
Accordingly, we consider the entire document that Louise
returned to Mildred Slater and conclude that the document was
not a valid will because it was neither wholly in Louise’s
handwriting nor duly attested by two competent witnesses.    See
Code  §  64.1-49.    We therefore hold that the circuit court erred
in confirming the jury verdict that the selected portions of
Louise’s handwritten entries were a valid will.4
Finally, we address Esther’s assignment of cross-error that
the circuit court erred in ordering her to pay one-half the fee
of the guardian ad litem.    Esther argues that because she
prevailed on the merits of the case placed before the jury, the
court abused its discretion in failing to require that Tamara
pay the guardian ad litem’s entire fee.    We do not consider this
argument further, however, because Esther’s reliance on her
former status as a substantially prevailing party now fails in
light of the different conclusion we have reached regarding the
merits of the case.
For these reasons, we will reverse that part of the circuit
court’s decree holding that the proffered portion of the  1997
4 In view of our holding that the  1997 document was not a
will, we need not consider Tamara’s remaining assignments of
error.
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document was Louise’s last will.    We will affirm that part of
the circuit court’s decree holding that the  1993 will was a
valid, attested will, affirm the court’s apportionment of the
fees of the guardian ad litem, and enter final judgment for
Tamara admitting the  1993 will to probate.
Affirmed in part,
reversed in part,
and final judgment.
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