Haag v. Stickley , 239 Va. 298 ( 1990 )

JUSTICE STEPHENSON,

with whom CHIEF JUSTICE CARRICO joins, dissenting.

I respectfully dissent.

It was “plain” to the chancellor, from a reading of the will as a whole, that the testator intended to bequeath shares to Stickley and Blye and that they would receive 95 and 94 shares, respectively. The majority agrees because it “cannot say that the chancellor misinterpreted or misconstrued the testamentary documents.” I do not agree.

In interpreting wills, it is fundamental that the testator’s intention will be given effect. Kling v. Virginia Trust Co., 215 Va. 226, 229, 207 S.E.2d 890, 893 (1974). This intention must be ascertained from a reading of the will as a whole. Id. The testator’s intention, however, “must be manifested with legal certainty, [and] . . . conjecture cannot be made to supply what the testator has failed to sufficiently indicate on the face of the will.” M.E. Church v. Brotherton, 178 Va. 155, 159, 16 S.E.2d 363, 365 (1941) (quoting Sutherland v. Sydnor, 84 Va. 880, 881, 6 S.E. 480, 481 (1888)). Accord Neblett v. Smith, 142 Va. 840, 848-49, 128 S.E. 247, 249-50 (1925); Waring v. Bosher, 91 Va. 286, 289, 21 S.E. 464, 465 (1895); Wootton v. Redd, 53 Va. (12 Gratt.) 196, 206 (1855). Thus, a court has.no authority to interpolate words in a will or to speculate as to the testator’s intention.

In my opinion, the chancellor’s conclusion, which the majority affirms, is solely the product of conjecture and speculation and authorizes bequests by implication which are not “manifested with legal certainty.” I, therefore, would reverse the trial court’s decree and hold that the 189 shares passed under the residuary clause.