62 W. Va. 639 | W. Va. | 1907
On the Ith day of March, 1901, the following paper was presented in the county court of Summers county for probate, having been filed in the clerk’s office of said court February 4, 1901, to-wit:
‘'In the Name of God Amen.
“ I Avis Hinton of the County of Monroe and State of Virginia, being of sound mind and memory and considering the uncertainty of this frail and transitory life do therefore make publish and declare this to be my last will and testament That is to say
“ First after all my lawful debts are paid and discharged*641 the residue of my estate real and personal I give bequeath and dispose of as follows to wit:
“ To my three sons William and Joseph and Silas to be. equal — my three sons to share equal at my death all my interests in all lands in Monroe and Mercer to be equally divided according to the above statement
“Also as they are land in Raleigh and Greenbrier Counties to be in consideration with the balance between my three sons to share equal.
“My daughter Eliza Ann has had her legacy in the West, as her share is there .she my daughter is not to share only in the West according to the above arraingment and iimigna-tions.
“ My three sons William Joseph Silas to be divided equally between them share and share alike.
“Likewise I make constitute and appoint my son William and my brother Enos Gwinn to be executors of this my last, will and testament hereby revoking all former-by me. made.
“ In witness whereof I have hereunto subscribed my name and affixed my seal the fourth day of February in the year of our Lord one thousand eight hundred and sixty two.
her
“Avis X Hinton (Seal)
mark
‘ ‘ The above written instrument was subscribed by the said Avis Hinton in our presence and acknowledged by her to-each of us and at the same time published and declared the above instrument as subscribed to be her last will and testament and and we at the testaiore request and in her presence have signed our names as witnesses hereto and written opposite our respective places of residence the fourth day of February One Thousand Eight Hundred and Sixty Two
“Robert Commack of Mercer County at present
“ George W. Bralford of Fayette County
“ Evan Hinton of Mercer County.”
And the following order was entered by said court admitting the above, will to probate therein: “West Virginia, in Summers County Court, March 7th, 1901: The last will and testament of Avis Hinton, deceased filed in this office
At the February rules 1905, Ann Eliza Barker filed her bill in equity in the circuit court of Summers county against William Hinton, Joseph Hinton and Silas Hinton alleging that Avis Hinton then a resident of Summers county died on the 22nd day of January, 1901, leaving surviving her as her only descendants distributees and heirs at law her children the said three defendants and the plaintiff, exhibiting a copy of the said paper and the order admitting it to probate as the last will and testament of Avis Hinton, and ■alleging that the said paper writing was not and is not the true last will and testament of the said Avis Hinton, deceased; that she never signed or executed the same in the manner required by law to make it a valid will; that neither the signature nor the body of said writing was in the handwriting of said Avis Hinton; that there was nothing in the record to show that the witnesses signed their names to said writing in the presence of each other, and in fact no legal evidence offered before said county court of the execution of said will by the said Avis Hinton; that there was not sufficient evidence to admit the alleged will to probate and that the action of the county court in so admitting it to probate was null and void; and praying that the said order of the county court be set aside and annulled and that ■a decree be entered declaring that said paper writing is not the last will and testament of the said Avis Hinton, and for such further relief as plaintiff might be entitled to.
The defendants filed their demurrer and answer, to which answer the plaintiff replied generally. The answer denied the material allegations of the bill; averring that the will was executed according to the requirements of the statute ••and was sufficiently proven to entitle it to be probated and recorded. The demurrer was overruled, and the defendants ■demanding a jury, the court impanneled a jury to try the
The main question involved here is the sufficiency of the attestation of the will. At the date of the execution of the paper in February, 1862, the law of Virginia required the attesting witnesses to sign their names in the presence of the testator, but did not require them to sign in the presence of each other, and this continued to be the law of the State of West Virginia until it was changed in 1882 by the legislature of this state so as to require attesting witnesses to a will to sign not only in the presence of the testator but also in the presence of each other, and the statute has so remained ever since. The testatrix, Mrs. Hinton, died January 22, 1901. The question presented is whether the statute in force at the date of the making of the paper, or that in force at the time of the death of the testator controls in the execution of the will. Counsel for appellant contends that the statute in force at the date of the death governs and cite several cases in support of their position. The first case cited is that of Sutton v. Chenault, 18 Ga. 1. It is there held that, “ The Act of February 16, 1852, requiring that from and after the First day of June thereafter all wills and testaments of personal property should be attested by three, or four credible witnesses and declaring that all laws of force in the State prescribing the mode of
The Act of 1882, chapter 84, re:enacted the whole chapter 11 of the code and re-enacted section 21 in the same form as it stood in the code, still preserving the exception as to wills executed prior to July 1, 1850, and by fair implication requiring that all wills made thereafter, and in terms providing that every will re-executed, re-published
The appellant assigns as error the giving of three instructions asked by appellees; but the first and third are not objected to by counsel for appellaut in their brief and the same do not in any way appear objectionable or prejudicial to appellant, the assignment as to them is' not well taken. The second instruction is in the following words: “The Court further instructs the Jury that' if they believe from the evidence that the subscribing witnesses to the writing offered in evidence to the last will and testament of Avis Hinton, deceased, viz: George W. Brafford, Robert Corn-mack and Evan Hinton are dead, and that their handwriting affixed thereto is the true and genuine handwriting of such witness, and that the signatures of such witnesses thereto have been known to be genuine then the Jury has a right
This instruction is excepted to because of the last words therein, “and required by the law.” This objection is based on the theory of the appellant that the law existing at the date of the testator’s death controlled the form of the execution of the will, and the appellees, having failed to prove the fact that two of the subscribing witnesses signed their names in the presence of each other, had failed in establishing the will. Complaint is also made by appellant of the refusal of the court to give seven several instructions asked for by her, all being based on the proposition that to establish the will the burden was on proponents to prove that two of the witnesses had signed their names as subscribing witnesses “in the presence of each other.” The court did not err in refusing appellant’s instructions.
Counsel for appellees assign cross-error, in that Joseph Hinton -was not permitted to testify in relation to the execution of the will of Avis Hinton. He was asked whether he was present at the execution of the will offered in evidence and whether he saw the will executed and who executed it, and whether he saw the attesting witnesses sign the same and whether they were present at the same time and in the presence of each other, “and did they sign the will as witnesses in the presence of your mother and in each other’s presence?” Objections were made to the answering of these questions and sustained by the court. Counsel for the proponents of the will stated to the court that they expected to prove by the witness that he was present at the time of the execution thereof, that the Avill was signed by Evan Hinton with the name of Avis Hinton in her presence and at her request as her own signature, and that said will was witnessed by George Brafford, Robert Commack and Evan Hinton, who signed the same in the presence of the testatrix and at her request and in the presence of each other, all being present at the same time, the witness also then being present, but the court refused to allow the witness to testify. In Martz v. Martz, 25 Grat. 361, it is held: “Upon the pre
The court erred in refusing to allow the testimony of Joseph Hinton to go to the jury. The verdict and decree of the court being in favor of the proponents of the will, they are not prejudiced by this error. We find no reversible error in the decree and the same is affirmed.
Affirmed.