January 8, 1999
Record No. 980558

STEPHANIE GALE MARTONE, a minor who sues by her
mother and next friend, Monique R. Martone



Charles E. Poston, Judge
Present: All the Justices

Record No. 980581

ALAN D. ALBERT, Guardian Ad Litem for the
Unborn and Unknown Issue and Heirs of Alexander L. Martone,



Record No. 980582




In this appeal, the primary issue concerns the
meaning of the term "person interested" as used in Code
Sect. 64.1-90. Because some of the proponents of a
decedent’s prior will had a mere expectancy under that will
and not a legally ascertainable, pecuniary interest, they are not
"person[s] interested." Therefore, we will affirm the
judgment of the circuit court dismissing this action.


This suit was commenced on behalf of
nine-year-old Stephanie Gale Martone by her mother and next
friend. Stephanie filed a bill in equity for issue devisavit
vel non to determine which of three documents is
the last will and testament of her grandfather, Dr. Alexander L.
Martone. She named Dr. Martone’s widow, Joan D. Martone
(Mrs. Martone), Dr. Martone’s children from his first
marriage, his grandchildren, great-grandchildren, and all unknown
or unborn issue or heirs of Dr. Martone (unknown heirs) as

Pursuant to Code Sect. 64.1-90, Stephanie
asserts that she is a "person interested" in the
probate of her grandfather’s will and that she was "not
otherwise . . . before the court" in a prior probate
[2] This section provides, in pertinent part:

[T]hat any person interested who has not
otherwise been before the court and who, at the time of the
decree or order, is under the age of eighteen years or of
unsound mind may file a bill in equity to impeach or
establish the will within one year after he becomes of age or
is restored to capacity . . . and that any person
interested who has been proceeded against by order of
publication may, unless he actually appeared as a party or
was personally summoned, file such bill within two years
after such decree or order.

Code Sect. 64.1-90.

The prior probate proceeding to which Stephanie
refers was commenced on June 24, 1996, when Mrs. Martone filed an
application in the Circuit Court for the City of Norfolk for quasi
inter partes probate of Dr. Martone’s will
dated March 3, 1995.
[3] Mrs. Martone named Dr. Martone’s four adult
children as parties in that proceeding. On September 6, 1996, at
the request of the children, the court entered a decree
converting the quasi inter partes probate to
an inter partes proceeding pursuant to Code
Sect. 64.1-80. The court also ordered that all interested
persons be made parties to the proceeding and that all
testamentary documents of Dr. Martone be filed. In response to
the court’s decree, two testamentary documents dated April
10, 1991, and February 6, 1995, respectively, were filed, in
addition to the March 3, 1995 will that Mrs. Martone had
originally submitted for probate. However, no other persons were
added as parties, nor was a guardian ad litem
appointed to represent the interests of any minors or unknown

The parties to that probate proceeding
submitted the issue devisavit vel non to a
jury. That jury, in special interrogatories, found that Dr.
Martone possessed testamentary capacity when he executed the
March 1995 will and that he was not acting under the undue
influence of Mrs. Martone. Accordingly, the court entered
judgment on the verdict on March 14, 1997, and admitted the March
1995 will to probate. That will expressly revoked all prior
wills, devised and bequeathed Dr. Martone’s estate to Mrs.
Martone, and named her as executor of his estate.

In the present case, Stephanie is a proponent
of the 1991 document. In that writing, Dr. Martone devised and
bequeathed his estate to his trustee, Peter W. Martone, to be
administered pursuant to the terms of a trust agreement also
dated April 10, 1991. The only provision in that will for his
grandchildren and great-grandchildren is found in Article V(b),
which states in pertinent part:

Any net income collected from assets held
by my Executor [Peter W. Martone] during the period of
administration of my estate may, in whole or in part, in the
sole discretion of the Executor, be distributed to any one or
more person or persons, to the permissible exclusion of any
one or more of them, within a class consisting of my wife and
my issue, or may be accumulated and added to the principal of
my residuary estate, or may be applied by my Executor to the
payment of debts, funeral expenses, administration costs
and/or taxes payable out of my estate . . . .

In Article VIII of the trust established by Dr.
Martone on the same day that he executed the 1991 will, he
directed that the trust property "shall be held and/or
distributed as [he] shall have designated in written instructions
addressed to [the trustee] . . . ." In
the same article, Dr. Martone also provided that, if he failed to
leave instructions for any portion of the trust estate, the
trustee shall distribute that property "to such person or
persons as would inherit personal property from [Dr. Martone] in
accordance with, and in the proportions provided by, the laws of
the Commonwealth of Virginia as if [he] had died intestate,
unmarried and owning such part or portion of the trust
estate." Thus, the 1991 will and trust are the only
instruments in which Dr. Martone provided for his children,
grandchildren, and great-grandchildren.

In response to Stephanie’s bill in equity,
all the defendants (including the guardian ad litem
appointed by the court for the unknown heirs), except Mrs.
Martone, filed answers and cross-bills seeking the same relief as
Stephanie, i.e., to have the 1991 document probated as the last
will and testament of Dr. Martone.
[5] Stephanie
and these cross-plaintiffs assert that Dr. Martone was acting
under the undue influence of Mrs. Martone when he executed the
March 1995 will. This position is the same one that Dr.
Martone’s children advanced in the prior probate proceeding.

Mrs. Martone demurred to the bill in equity and
cross-bills. In a decree dated December 19, 1997, the circuit
court sustained the demurrer and dismissed this action. In a
letter opinion, the court discussed the nature of the interest
created in Dr. Martone’s 1991 will for the benefit of his
grandchildren and great-grandchildren:

[T]he grandchildren and great-grandchildren
will take under the 1991 will only from the income from the
estate while in the hands of the executor before he transfers
the assets to the trustee. However, there is a further
qualification. They will take only if the executor, in his
sole discretion, decides to make such distributions, and even
then he may distribute to some, but not all, in such amounts
and proportions as he, in his sole discretion, deems
appropriate. There is no mandate for the executor to make any
distributions at all.

The court concluded that the interest that
these parties may have "cannot rise above the level of a
mere expectancy."

The court further determined that all the
parties in the present action who were not named as parties in
the prior probate proceeding were, nevertheless, fully
represented in that proceeding by Dr. Martone’s children.
Thus, by applying the doctrines of res judicata and virtual
representation, the court concluded that the grandchildren,
great-grandchildren, and unknown heirs are precluded from
proceeding under Code Sect. 64.1-90 to establish the 1991
document as the last will and testament of Dr. Martone. The court
likewise found that Dr. Martone’s four children are barred
by the doctrine of res judicata from relitigating the probate of
the March 1995 will.
[6] Stephanie and the cross-plaintiffs appeal.


To impeach or establish a will pursuant to Code
Sect. 64.1-90, a party must, inter alia, be a
"person interested." Title 64.1 pertaining to wills and
decedents’ estates does not define the term "person
interested" although it is used in several sections of that
[7] See e.g., Code Sects. 64.1-80, -81,
-82, -83, -88, and –90. However, we believe that the term
means that an individual must have a legally ascertainable,
pecuniary interest, which will be impaired by probating a will or
benefited by setting aside the will, and not a mere expectancy. See
Ames v. Reeves, 553 So.2d 570, 572 (Ala. 1989) ("To
maintain a will contest, it is essential that the contestant have
a real, beneficial interest, not simply an expectancy or an
inchoate right."); Estate of Keener, 521 N.E.2d 232,
234 (Ill. App. 1988) ("[A]n interested person needs to have
a direct, pecuniary, existing interest which would be
detrimentally affected by the probate of the proferred
will."); Bloor v. Platt, 84 N.E. 604, 605 (Ohio 1908)
("Any person who has such a direct, immediate, and legally
ascertained pecuniary interest in the devolution of the
testator’s estate as would be impaired or defeated by the
probate of the will, or be benefited by setting aside the will,
is ‘a person interested.’"); Washington &
Lee Univ. v. Dist. Court of Okla. County
, 492 P.2d 320, 324
(Okla. 1971), cert. dismissed, 406 U.S. 951 (1972)
("[T]he term ‘any person
interested’ . . . means any person having
such a direct pecuniary interest in the devolution of a
testator’s estate that his interest would be impaired or
defeated if the will were admitted to probate, or his interest
would be benefitted if the will were denied admission to
probate."); see also Fitzgibbon v. Barry,
78 Va. 755, 760 (1884) ("[I]n no case . . . is it
necessary to make those persons parties who are entitled
‘only to future and very uncertain and contingent

The interest that the grandchildren,
great-grandchildren, and unknown heirs assert in order to qualify
as a "person interested" is found in Article V(b) of
Dr. Martone’s 1991 will.
[8] In that
provision, Dr. Martone authorized his executor to distribute any
net income from assets held during the administration of the
estate to any one or more persons in a class consisting of Dr.
Martone’s wife and his issue.
[9] However,
the executor has absolute discretion in deciding whether to
accumulate income and add it to the principal of the residuary
estate; to apply it to the payment of debts, taxes, and other
expenses of the estate; or to distribute it to members of the
designated class. Even if the executor chooses to disburse
income, he also has complete discretion as to the amount of any
distribution and to whom it will be paid. In other words, he can
disburse income to some members of the class and exclude others.
We have stated that "equity will not compel or control
. . . [the] discretion or exercise" of "a
mere naked power [of disposal among the members of a class that
is] purely discretionary with the donee." Daniel v. Brown,
156 Va. 563, 571, 159 S.E. 209, 211 (1931).

Thus, we conclude that the interest created by
Article V(b) of the 1991 will is a mere expectancy, not a legally
ascertainable right. It is, therefore, not sufficient to satisfy
the requirement of a "person interested" under Code
Sect. 64.1-90 with regard to the grandchildren,
great-grandchildren, and unknown heirs. Under the 1991 will, only
Dr. Martone’s four children are "person[s] interested." However, as already noted, they litigated their
claim in the prior probate proceeding when they attempted to
establish the 1991 document as Dr. Martone’s last will and

Contrary to arguments made by Stephanie and the
cross-plaintiffs, the decision in Gaddess v. Norris’
, 102 Va. 625, 46 S.E. 905 (1904), does not compel
a different result. In that case, the decedent’s will
established a trust for his six children. The decedent directed
his trustee to distribute a portion of the income each year to
his children during their respective lives. The will further
granted a power of appointment to each child to dispose of his or
her share of the trust by will in favor of any of his or her
issue. If any child died without having exercised the power of
appointment, his or her share passed to his or her issue. Because
of the nature of the grandchildren’s interests, we concluded
that they had to be named as parties to a suit to construe the
decedent’s will. Unlike the interest in the present case,
the grandchildren in Gaddess had more than a mere
expectancy. Some or all of them would receive a portion of the
decedent’s estate either by exercise of the power of
appointment or as takers in default. Id. at 630, 46 S.E.
at 907.

Similarly, we held in NationsBank of Va.,
N.A. v. Estate of Grandy
, 248 Va. 557, 560, 450 S.E.2d 140,
143 (1994), that "the interests of the potential
beneficiaries [of a trust were] too remote to require the joinder
of those potential beneficiaries as necessary parties." The
interests of the potential beneficiaries were contingent
interests that could be defeated by any future issue of Grandy,
the beneficiary of the trust.

We next consider the children’s contention
that the circuit court erred by applying the doctrine of res
judicata to dismiss their cross-bills. They argue that the court
had no basis for that ruling because the record of the prior
probate proceeding was not before the court, in particular, the
final decree entered in that proceeding. We do not agree.

The same judge presided over both the instant
action and the prior probate proceeding. Moreover, the court was
entitled to take judicial notice of the record in that case when
ruling on Mrs. Martone’s demurrer since Stephanie and the
cross-plaintiffs referred to the prior probate proceeding in
their cross-bills. See Fleming v. Anderson, 187 Va.
788, 794-95, 48 S.E.2d 269, 272 (1948) ("[W]here the
plaintiff refers to another proceeding or judgment, and
specifically bases his right of action, in whole or in part, on
something which appears in the record of the prior case, the
court, in passing on a demurrer to the complaint, will take
judicial notice of the matters appearing in the former

Finally, we address the claim that the circuit
court erred by allowing Mrs. Martone to contest the right of the
grandchildren, great-grandchildren, and unknown heirs to bring
this action after she endorsed the September 6, 1996 order as
"Agreed." That order directed that all interested
persons be made parties to the inter partes probate
proceeding. But neither Mrs. Martone nor Dr. Martone’s
children named any additional parties, nor was a guardian ad
litem appointed to represent the interests of minors or
unknown heirs.

We find no merit in this argument. That order
did not identify any persons who needed to be made parties, nor
did it adjudicate whether any particular individual was a
"person interested" in the proceeding. Thus, we
conclude that Mrs. Martone has not taken a position in this case
that is inconsistent with the one that she took when she endorsed
that order.

For these reasons, we will affirm the judgment
of the circuit court.

Record No. 980558 — Affirmed.

Record No. 980581 — Affirmed.

Record No. 980582 — Affirmed.





[1] Dr. Martone’s children are Joseph
C. Martone, Peter W. Martone, Alexander L. Martone, Jr., and
Sharon M. Nelson; his grandchildren, in addition to Stephanie,
are Jeffrey Martone, Lisa Martone, Susan Kelly Martone, Peter W.
Martone, Jr., Michael V. Martone, Justin A. Martone, David R.
Nelson, Jr., Bridgete M. Nelson, Jennifer E. Nelson, Christopher
A. Nelson, and Bradford P. Nelson; and his great-grandchildren
are Megan Martone, Amanda Martone and Kavin Nelson, all of whom
are minors.

[2] Stephanie did not specifically allege in her bill in
equity that she was proceeding under Code Sect. 64.1-90,
although she does so on brief and orally before this Court.

[3] Dr. Martone died on June 6, 1996.

[4] The February 1995 document contained essentially the
same provisions as the March 1995 will.

[5] Like Stephanie, these cross-plaintiffs
did not state in their cross-bills under which statutory
provision they were proceeding.

[6] On brief, the children state that the
validity of their cross-bills in this action is immaterial as
long as Stephanie or one of the other cross-plaintiffs is allowed
to proceed under Code Sect. 64.1-90.

[7] Although Code Sect. 64.1-90 is
the focus of the arguments presented to this Court, the
cross-plaintiffs who cannot utilize Code Sect. 64.1-90
because they are over 18 years of age suggest that they could
commence their own actions under some other section because the
prior probate was never properly converted to an inter partes
proceeding as ordered by the circuit court. However, our analysis
of the term "person interested" applies to the phrase
as it is used in other sections of Title 64.1.

[8] Since all of Dr. Martone’s
children were living at the time of his death, Article V(b) of
the 1991 will is the only provision under which his grandchildren
and great-grandchildren could receive a distribution from his

[9] For the purposes of this case, we
assume, without deciding, that the term "issue" as used
in the 1991 will includes Dr. Martone’s grandchildren,
great-grandchildren, and unknown heirs.

[10] Since the grandchildren, great-grandchildren, and
unknown heirs are not "person[s] interested," we need
not address whether they were otherwise before the court in the
prior probate proceeding through "virtual