## Facts

- Blanche Burton Mallory died leaving a handwritten (holographic) will.
- The will named her brother, William L. Burton, “as executor and trustee” and directed him to carry out her “wishes.”
- The will did not name Mallory’s heirs at law (including Virginia Dare Burton Irwin and others) and did not identify any other beneficiaries or state any definite trust purpose.
- The writing included the phrase “present herewith & without recourse,” which Burton argued showed an unconditional transfer to him.
- Burton claimed the will left him the entire estate beneficially and that any “wishes” language was only a request, not a legal duty.
- The heirs at law claimed Mallory intended to create a trust for their benefit, with Burton holding the property as trustee; they argued the purported trust was indefinite and therefore void, so the property should pass to them via resulting trust.
- In the chancery court, Burton proffered extrinsic evidence that he and Mallory had an unusually close relationship and that he had been financially dependent on her; the heirs objected and the chancellor excluded the proffer.
- The chancery court ruled for the heirs, treating the will as creating a “naked trust” for the heirs and ordering Burton to hold the estate for them. Burton appealed.

## Issues

1. Did Mallory’s holographic will create a trust (or a void trust giving rise to a resulting trust for her heirs at law), or did it make an outright gift of her estate to Burton?
2. Was extrinsic evidence of surrounding circumstances admissible to determine Mallory’s testamentary intent, and could the heirs seek to reopen the record after having obtained exclusion of that evidence at trial?

## Decision

- The Supreme Court of Virginia reversed the chancery court’s decree and remanded for entry of a decree consistent with its opinion.
- The court held the will did not create a trust in favor of the heirs at law; it conveyed the estate to Burton as an unconditional gift.
- The court held it was error to exclude Burton’s proffered extrinsic evidence bearing on intent and circumstances.
- The court refused to allow the heirs to take additional evidence after they had successfully objected to the admission of extrinsic evidence as a matter of trial choice.

## Legal Principles

- A will must be read as a whole to determine testamentary intent.
- A will that creates a trust for undesignated beneficiaries and unspecified purposes fails for indefiniteness; if a will creates a void trust, the property is held on resulting trust for the heirs at law and distributees.
- The use (or nonuse) of the word “trustee” is not conclusive; a testator may pass fee simple title without precise legal terminology.
- Precatory words may suggest a trust when directed to an executor as a fiduciary, but precatory words directed to a sole devisee/legatee do not create a trust unless the will shows an intent to impose a legal obligation to make a particular disposition.
- Courts will not treat words of suggestion or advice as mandatory trust directions when the will does not show intent to create enforceable duties.
- Extrinsic evidence is admissible to determine testamentary intent when there is a legitimate dispute about the meaning of the words used.
- Excluding proffered extrinsic evidence on objection is reversible error where intent is genuinely disputed; a party that secured exclusion as a trial choice may not later seek to reopen the record to add evidence.

## Conclusion

The Supreme Court of Virginia held that Mallory’s holographic will, though it labeled Burton “executor and trustee” and spoke in terms of carrying out her “wishes,” did not identify beneficiaries or purposes sufficient to show an intended trust and instead manifested an intent to give Burton the estate outright, reinforced by the phrase “present herewith & without recourse” and the close, financially dependent relationship shown by the proffer; the chancellor therefore erred in finding a trust for the heirs and in excluding extrinsic evidence, and the heirs could not obtain a second opportunity to introduce evidence after having caused its exclusion at trial.


Burton v. Irwin, 181 S.E.2d 624 (1971)