73 W. Va. 286 | W. Va. | 1913
Katie I. Bailey and others, children of A. J. Lacy, deceased, who was a son of the testatrix, filed their bill in equity to annul the will of Mary L. Bee, on the alleged grounds of mental incompetency and undue influence. . The defendants are her husband, Dr. Isaiah Bee, executor under the will, her son, Dr. I. E.- Bee, and the children of Mollie K. McCreery, deceased, her daughter. The bill charges Dr. Isaiah Bee with •having secured the execution of the will in behalf of the person named in it as beneficiary. On an issue, devisavit vel non, the jury found against plaintiffs as contestants; the court entered judgment on the verdict, and, having entered its decree declaring the will valid, dismissed the suit. Plaintiffs have appealed.
The questions presented relate to the competency of witnesses, the sufficiency of the evidence to show knowledge by the testatrix of the provisions of the will, and the propriety of certain instructions given and refused.
The contestants seek to impeach the competency of Dr. I. E. Bee, as a witness testifying to his mother’s qualification to execute the will. They cite §23, Ch. 130, Code 1906, especially that provision declaring incompetent a party to a suit when examined about a transaction or communication with one then deceased. The son is a party; a necessary party. He is sound by the decree entered pursuant to the verdict on the issue devisavit vel non. Living, as he did, in his mother’s home as one of her family, he knew, better than any other person, her qualification and competency, and, in fact, any
The section cited was enacted to remove the common-law incompetency of any- party to a suit as a witness in his own behalf. Thereafter, he could, except for some purposes, testify in support of any claim asserted by him in any court in this state. But, even when excluded under the common-law inhibition, his adversary could, if he so desired, call as a witness in his behalf a party to a suit, and, when examined, compel him to testify against his own interest or claim and in support of a counter claim or interest. If competent under the previous rigid exclusion, the same reason enforces the conclusion favorable to his competency under the statute, the purpose of which was to enlarge, and not to restrict, the competency of a witness, although a party to the suit.
But we are not without authority in support of the right and competency of the junior Bee to testify as a witness on behalf of the proponents. The same principle was discussed in Coffman v. Hedrick, 32 W. Va. 119, 123. A brother of the testator, who but for the will would have taken by inheritance, was called by the proponents to prove the factum of the will. The court held him competent. It was a contest like that now before us, not a mere probate without challenge. The third point of the syllabus is: “One of the attesting witnesses to a will, who is a brother to the party who is claimed to have made the will in controversy, and who is introduced by the contestees to prove the execution of the paper in the absence of the other subscribing witness, who can not be found after diligent inquiry, although said witness so introduced is a party to the suit brought to impeach the validity of said will,
Nor does Kerr v. Lunsford, 31 W. Va. 659, conflict with this holding; because, in that case, the interested witness was held incompetent on account of an interest hostile to the validity of the will and the pecuniary advantage enuring to him in the event of its successful impeachment. If permitted to testify, he would have given evidence in his own behalf against the devisee under the will.
But Crothers v. Crothers, 40 W. Va. 169, accords with the views herein expressed on the question of Dr. I. E. Bee’s competency. It says that “a person interested may give evidence against his own interest, both at common law and under §23, Ch. 130, Code”, the purpose of which “was to enlarge the competency of witnesses. It does not per se render any incompetent who are competent at common law. The exception therein does not create incompetency, but leaves the cases specified in it just as they were at common law”. It was there held that “children of a decedent, who are his distributees, are competent witnesses to prove a transfer by their father of personal estate in favor of the transferee”, such testimony being of course directly hostile to their interest, in the property so transferred. In the opinion, it is stated that, “to exclude a witness, he must be interested in favor of the party calling him. Sims v. Givan, 2 Blackf. 461; Kennedy v. Barnett, 1 Bibb 154”. In Oxenden v. Penerice, 2 Salk. 691, it is held that a legatee is competent as a witness to disprove the will. He then swears against his interest. See, also, Robinson v. Robinson, 20 S. C, 567. Dr. I. E. Bee was made a party solely because but for the will he would take by inheritance a portion of the property thereby
But the witness Patterson, who testified for the contestants on the question of testamentary capacity, was not competent. His wife, a party to the suit and a grandchild of the testatrix, was disqualified to testify in her own behalf to impeach the will. lie was likewise disqualified. Kerr v. Lunsford, 31 W. Va. 659; Freeman v. Freeman, 71 W. Va. 303. However, as the decree, here affirmed, establishes the will, the effect of his testimony is now negligible. •
Appellants also insist that the proof is insufficient to show due execution of the will by the testatrix, in that it fails to show that it was read by or to her, or that she otherwise acquired knowledge of its contents. Following the course approved in Kerr v. Lunsford, supra, the proponents' first offered the will in evidence, and, by the attesting witnesses, proved its due execution and the competency of the testatrix, and rested, thus having made a prima facie case. The contestants then introduced the testimony of sundry witnesses to show the mental incapacity of the testatrix to make the will, after which proponents offered in rebuttal much evidence on the same subject. But the contestants offered no proof of her want of knowledge of its contents, or of undue influence in procuring its execution. They, however, contend, in effect, that, to sustain the validity of the will, it must be made to appear affirmatively, from the evidence of proponents, that the testatrix had knowledge of the provisions of the will at the time of its execution.
The will was prepared by an attorney at his office in Princeton, on the day it was signed and attested. The husband of the testatrix furnished him the information for its preparation, and the draftsman wrote it in conformity with that information. The husband then took the will, and secured.the attendance of the attesting witnesses, the three going together to his residence, where the testatrix caused her signature to be signed, after which the witnesses also signed', the three being present during the whole time. The proof shows that, when Dr. Bee, the husband, and the attesting witnesses arrived at the residence, the former went into the house, and in a few minutes he and Mrs. Bee returned to the porch, where
The evidence thus detailed, while not all, is the part material
Speaking generally, it may be said that the great and prevailing weight of authority is that, where a will is executed according to the prescribed legal formalities, it will be presumed, in the absence of evidence to the contrary, that the testator read it, or otherwise became acquainted with its provisions. Citation of authorities must, on account of the number, necessarily be limited; and, for that reason, one only from each of several different states is cited. Ross v. Ross, 117 N. W. (Ia.) 110; Estate of Latour, 140 Cal. 414; Waters v. Waters, 222 Ill. 26, 113 Am. St. 359; Cramer v. Crumbaugh, 3 Md. 491; Sechrest v. Edwards, 61 Ky. 163; Pettes v. Bingham, 10 N. H. 514; Snodgrass v. Smith, 42 Col. 60; Brown v. McBride, 129 Ga. 97; McCormell v. Keir, 76 Kan. 527; Hoshauer v. Hoshauer, 26 Pa. 404. In re Jones Will, 85 N. Y. S. 294; Patton v. Hope, 37 N. J. Eq. 522. Key v. Holloway, 66 Tenn. 575; King v. Kinsey, 74 N. C. 361; Mordecai v. Canty, 86 S. C. 470; Hawkins v. Oatway, 143 Wis. 137. It is not necessary, upon an issue of devisavit vel non, to prove, besides the formal execution of the paper and the capacity of the testator to make it, the further fact, by distinct evidence, that the testator knew the contents of the instrument; for the jury may infer such knowledge from the evidence of capacity and execution. Carr v. McCamm, 18 N. C. 276; 40 Cyc. 1100, 1285. Such knowledge may be proved, where necessary, by circumstantial evidence sufficient reasonably to satisfy the jury, direct evidence not being indispensable. Montague v.
Contestants offered no proof to show that the testatrix did not read the will, or that it was not read to her. Apart from the answers of Pendleton and Barbor to the questions heretofore stated, there is no evidence that Mrs. Bee did or did not read the paper, or hear it read, before signing it. For all that appears, she may have read it or heard it read before its execution. She and her husband were together in the room before she signed it, although only for a few minutes. He may then have fully informed her of the contents of the paper, or read it to her. What occurred subsequently neither proves nor disproves previous knowledge of its provisions on her part. It was incumbent on contestants to rebut the presumption of knowledge, which the authorities cited says exists under similar circumstances. “From the due execution of the will, it is presumed that the testator was acquainted with its content’s, although he could neither read nor understand the language in which it was written”. Hoshauer v. Hoshumer, 26 Pa. 404. The court said in the case cited: “We must admit the presumptions that arise from the ordinary course of doing such business, and one of them is that a person signing any instrument and asking others to attest it has taken due care to understand its contents. His signing shows that he is giving expression to some purpose of his mind, and we must presume that - he knows the writing contains that
But, in this case, there is the unchallenged testimony of Barbor, an attesting witness, that Mrs. Bee did read the will; of both attesting witnesses, that Dr. Bee informed her it was prepared according to her directions; and of Pendleton, that she desired Topsy to have her property. Many other witnesses testify to the same, desire and intention expressed by the testatrix, although two witnesses for contestants say she told them she intended to will it to her son A. J. Lacy. . As stated, there was no evidence of any undue or improper influence on the part of any person in order to procure the testatrix to make the will she did make, or any will of any character. But, having heard the testimony, of all the witnesses, the jury, in effect, by its verdict that the paper purporting to be the true last will of Mrs. Bee was in fact such will, necessarily also found, under full and proper instruction by the court on that point, that she knew its contents. Otherwise, they could not have returned the verdict they did return. Nor can we now say the finding was without sufficient evidence to warrant it, either in respect of the due execution of the will or of the competency of Mrs. Bee to make it. On the contrary, our conclusion is that the evidence offered amply justified the jury’s verdict, and the court’s judgment and decree thereon.
The contestants further complain of the giving of certain instructions asked by the proponents, and of the refusal of some asked by them. Our examination leads us to the conclusion that the court did not err in its rulings- on any of the instructions. Those given for proponents, numbered 1 to 6, 9 and 11, find support in Kerr v. Lunsford, stopra; 7, 8 and 10, in Nicholas v. Kershner, 20 W. Va. 252, and Jarrett v. Jarrett, 11 W. Va. 584.
Of those requested by contestants, the court gave such as properly presented their views to the extent supported by the evidence, and refused those which, in our judgment, either
We are therefore of opinion to affirm the decree.
Affirmed.