Appeal from the District Court of the Virgin Islands Division of St. Thomas.
Van Dusen, Adams and Rosenn, Circuit Judges.
This appeal presents, in effect, a conundrum: When is a holographic will not a holographic will?
Dorothy Davenport Buckley died on October 7, 1975. She left two purported wills. One, executed on March 29, 1972, gave her estate to a variety of charitable institutions. It was typewritten, dated, and signed by Mrs. Buckley and by witnesses, and therefore complied with 15 V.I.C. § 13. The other document was executed on June 21, 1975. It, too, left her estate to charity. This second will was wholly handwritten and, for the purposes of this appeal, we assume that it was in the hand of Mrs. Buckley. It was dated, executed by Mrs. Buckley, and signed as well by five witnesses.
Petitions for the administration of each will were filed by the respective executors, and the district court was called upon to resolve the dispute. Assuming authenticity, the district court properly narrowed the issue to the validity of the more recently-executed handwritten will.
Since the June 21, 1975 will was "entirely written, dated, and signed by the hand of the testator . . .," the district court found that it was a holograph.*fn1 The court then turned to 15 V.I.C. § 8, which provides that
No . . . holographic will . . . shall be valid unless made by a soldier or sailor while in actual military or naval service, or by a mariner while at sea . . ..
The will was ineligible for probate, declared the court, since Mrs. Buckley did not satisfy the critical occupational conditions for the validity of a holographic will.
The executor and a purported beneficiary under the handwritten will appealed. We reverse.
Although Mrs. Buckley's second will is a holograph in the sense that it was entirely in the handwriting of the testator, it is not subject, by this fact alone, to the provisions of the holographic will section of the Virgin Island Code. That section must be understood and applied in the broader context of the law of decedents' estates.
Originally, at the common law, property could be passed at death without the formality of a written and witnessed testament. It was even permissible to probate a last will that had been reduced to writing by a third party, although neither testator nor witnesses had signed the document. Oral or nuncupative wills, recited by witnesses, were also allowed. In time, the possibility of fraud became apparent and, by ...