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May 6, 1947

STONER et al.

The opinion of the court was delivered by: REEVES

This is an action by the residuary legatees of Christina Buchholz, deceased, to recover the sum of $ 119,000 for the estate of their decedent from the estate of Frederick W. Buchholz, deceased, and which sum it is averred properly belongs to the estate of Christina Buchholz and to them as residuary legatees. The executor under the last will of Christina Buchholz declined to join in the proceeding and was made a defendant by the plaintiffs. The suit is based upon the following facts:

On August 15, 1941 Christina Buchholz was the owner in fee simple of a parcel of land of approximately ten acres in the State of Virginia. It was commonly known as Occidental Farms. On that date she made an absolute conveyance of such land to her only child, her son, Frederick W. Buchholz, an adult. The grantee, Frederick W. Buchholz, in turn, executed the following codicil to his will:

 'I, Frederick W. Buchholz, of the City of Washington, District of Columbia, do make, publish and declare the following to be a codicil to my last will and testiment bearing date the 17th day of April, 1941:

 'IN ALL RESPECTS, except as hereinbefore expressly stated, I hereby ratify and confirm my last will and testament aforesaid.

 'IN WITNESS WHEREOF, I have hereunto set my hand and seal this 15th day of August, 1941.

 '/s/ Frederick W. Buchholz (Seal)'

 In April following the government appropriated this land for defense purposes and Fredereick W. Buchholz was awarded $ 119,000 for the land so conveyed to him. Frederick died on November 21, 1944. Christina survived until January 15, 1945. The codicil above mentioned was not in the will of Frederick admitted to probate and no provision was made similar to that of the codicil executed on August 15, 1941. The executors proceeded to administer the estate of Fredereick and have denied the validity of the claim interposed by the plaintiffs.

 In this action several defenses are raised, the chief of which is, that if a valid contract was ever made by Frederick in favor of his mother as evidenced by the codicil of his then-will, same was rescinded by mutual agreement and arrangements between Christina and Frederick and that a valuable consideration was given by Frederick for the release.

 The facts as gleaned from practically undisputed testimony disclosed that when the property involved was appropriated by the government the home of Christina Buchholz was in like manner appropriated. This left her 'upset' and in distress of mind. Immediately Frederick not only undertook to secure as large an award as he could for both his property and that of his mother, but at the same time to provide another home for his mother. There was much conversation and an extensive search for a satisfactory place for Christina to reside. It became a pressing problem for both mother and son.

 One of the witnesses for the defendants, who was a business agent for both mother and son, testified that the mother said that if Frederick would provide a home for her she would not be interested in the proceeds of the condemnation. At the same time this witness said that the mother never knew of the provisions embodied in Frederick's will executed on August 15, 1941, and that there was no agreement of the kind mentioned in said codicil.

 There was much testimony from many witnesses that, during the years following the condemnation proceeding and until the death of Frederick, the mother was constantly asserting a claim with respect to the proceeds of the award made in the condemnation proceeding. The evidence on the claimed recission of the agreement as appeared in the codicil was fragmentary, and in no instance did it disclose a full, free and fair discussion between Frederick and his mother of the agreement to retransfer by will in the event the mother survived him. Because of the death of the mother and son much testimony was offered of statements and conversations had by and between them and statements made sporadically from time to time by each of them to friends and other persons concerning their intentions. This testimony was competent, though in some instances received subject to objections. It indicated the intentions of the parties. Their conversations and expressions should be treated in law as verbal acts as disclosing to the court whether there was in fact a contract rescinding the agreement established by the codicil.

 It seems important in the decision of the case to determine in the first instance what the obligations created by the contract of August 15, 1941 were and what rights were created by it.

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