85 Va. 146 | Va. | 1888
(after stating the case), delivered the opinion of the court.
Preliminary to an examination of the questions presented by the bill of exceptions of the defendants in the issue devisavit vel non, it is necessary to notice, though very briefly, a question raised in the argument here by counsel for the appellee, who was the plaintiff in the trial of said issue.
The several objections taken by the defendants therein, to the rulings of the court during the trial of said issue, are embodied in one bill of exceptions which is certified, by the court. It is objected that, for this reason, the bill of exceptions is not valid. We are clearly of opinion that the objection is not well made. The object of a bill of exceptions is to put upon the record all the facts touching the decisions of the court respecting questions of law, which do not appear upon the record, and which arise in the course of the trial, so that when the case is removed to an appellate court by writ of error, the bill of exceptions may be taken into consideration, and there finally decided, by which the decision of the court below will be affirmed or reversed. Such being the object, it is obvious that it is quite immaterial whether the court certifies one or several exceptions to its rulings in one bill. The term, “bill of exceptions,” is in the plural, and, strictly speaking, means, ex vi termini, that more than one objection to the rulings of the trial court is embodied in and certified thereby. The usual practice is to certify separately each exception to the ruling of the court, and in such case each one is properly designated “ a bill of exception,” not a “ hill of exceptions.” Hence, whether one exception, or more than one, be certified in one and the same “bill” is not material, if each, where there is more than one, is therein distinctly set
I. In the petition for appeal, and in the brief of counsel for the appellants, the first error assigned and treated is the refusal of the court to set aside the verdict found by the jury on the trial of the issue directed, when in the chronological order of things this is the last matter to be considered, as it was necessarily the last ruling of the court objected to.
We will, therefore, first consider the second assignment of error as set out in the bill of exceptions. It is to the ruling of the court refusing to exclude from the jury, on the trial of the issue, the answer of Thomas Hall, the propounder of the alleged will, to a question asked him on cross-examination by the counsel of the defendants in said issue. Thomas Hall was asked if any one knew, besides himself, that Lydia Hall had made a will, and he answered that he had told Missouri Davis, Rufus Thompson and Dr. Crockett of the execution of the will. It was this answer that the court was asked to exclude. We are clearly of opinion that the court erred in refusing to exclude it.
The paper in question, purporting to be the last will of Lydia Hall, deceased, was not found among her papers, but came from the possession of Thomas Hall, and upon his motion and on his testimony and that of his son, A. Gr. Hall, it was admitted to probate in the county court of Tazewell county. At the trial of the issue, at the bar of the circuit court, in this case, these two witnesses alone are introduced to prove that the paper was in the ■ handwriting of Lydia Hall; Thomas Hall, the propounder, being himself the sole beneficiary thereunder, and both of them testifying that they were well acquainted with the handwriting of
In his answer to the bill in this suit, Thomas Hall, the propounder, says that Lydia Hall visited his house a feio weeks before her death, at which time she remained all night; that on this visit she gave him the will which has been admitted to probate ; that he told her he would prefer that some one else should keep it, but that she replied that she wanted him to keep it and say nothing about it, as she would be annoyed by the Browns. But in his testimony before the jury he says that about ten or twelve days before her death she brought the paper in question to him and told him that it was her will; that she had written it and had willed him all she had; that he said to her that he did not want to keep the will himself, and wanted her to get some one else to keep it; that she said she wanted it kept a secret, and that he must keep it; that if any one knew what she had done it would bring her enemies down on her; that he took the will and locked it up in a drawer, and never let any one see it until he sent it the next day after her burial to his lawyer at Tazewell courthouse to examine; that he did not think the will was any account because his sister had left it in his possession,; and that he sent it to his lawyer by his son, Grayson (the said A. G. Hall), to see if it would be considered a good will, and that none of Lydia Hall’s other relations and kin ever saw the paper until it was offered for probate in the county court.
These statements—the one in his answer to the bill and the other in his testimony before the jury—are inconsistent in essential particulars; and, to say the least, tend strongly to show either that Thomas Hall had a very treacherous memory, or that he was most reckless in his statements. For in his answer he states that his sister gave him this paper to keep a few weeks before her death and during a visit to his house, while in his testimony before the jury he says she brought it to him some ten
Moreover, this witness, the sole beneficiary under the paper in question, admits that it was copied from a form procured by him from his counsel some eighteen months before this paper was written, and that hearing his sister, Lydia Hall, say she desired to make a will, he furnished her with the form and told her she could write her own will and no one would know anything about it. He says that this form was not procured with reference to the will in question, but with the view of enabling his own wife to dispose by will of certain real estate which had been devised to her by her father.
Such are some of the circumstances disclosed by this witness touching the execution of this paper, which was admitted to probate upon his testimony and that of his son. Ho friend, neighbor or acquaintance was called on other than this sole beneficiary and his son. They alone testified that the paper was in her handwriting, and upon that testimony it was admitted to probate. At the trial of the issue directed in this suit, and in the face of the charge in the bill that it was not the will of Lydia Hall, but was a forgery and fraud, Thomas Hall, the propounder, who held the affirmative and upon whom rested the onus of proving that this paper was wholly written by Lydia Hall, offered no additional testimony, but relied solely in this respect upon his own testimony and that of his son.
It cannot be denied that the circumstances were well calcu
II. We will now consider briefly the appellant’s assignment of error, designated as Ho. 3, which is also set forth in the bill of exceptions. It is that on the trial of the issue, the defen
It is charged in the bill that the paper in question is not the last will and testament of Lydia Hall, deceased; that it was not written by her either in whole or in part, and that it is a fraud and forgery. Gould there be, in the nature of things, any more conclusive proof of the fraudulent act of propounding as true a false and forged will, than by establishing by competent evidence, not only that the paper propounded is false and forged, but that it was forged by the propounder ? We think not.
In order to the validity of a will, the statute, § 4, ch. 118, Code 1813, requires that it .shall be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name
The writing here propounded as the will of Lydia Hall, deceased, purports to be wholly written and signed by her. On the trial of the issue devisavit vel non directed in this case, the sole question was whether or not the paper in question was the will of Lydia Hall, deceased, or, in the language of our statute, § 34, ch. 118, Code 1873, “whether any, and if any, how much” thereof was her will. The propounder, Thomas Hall, held the affirmative, and the onus was upon him to establish the fact that the paper propounded was what it purports to be—the holograph will "of Lydia Hall, deceased. To establish this all-important and indispensable fact he was content to rely upon his own tes timony and that of his son, when the will came from his possession, he being the sole beneficiary. Thomas Hall having thus rested his case, the defendants therein, to sustain the issue on their part, introduced not less than three witnesses, who testified that they had known the decedent long and well, and that they had had opportunities to be, and that they were, acquainted with her handwriting, and that the paper propounded as her will was not in her handwriting. And the said defendants, to further sustain the issue on their part, offered to prove by a witness that the writing in question was a forgery and in the handwriting of the propounder, but the court, on the motion of the counsel for the plaintiff in the issue, rejected the evidence, and thus arose the question under consideration.
The one thing essential to the validity of every testamentary paper is that it truly expresses the will of a free and capable testator or testatrix. There is in the present case no question
In the present case, the paper propounded as the will of the decedent is surrounded by circumstances of a suspicious character calculated to arouse the jealous scrutiny of the court, and
It cannot be necessary to cite authorities for the proposition that a forged will is fraudulent and void. Hor can it be said that a party contesting the validity of a will is confined to any one mode of proving that the instrument was not written or signed by the decedent, there being more than one legitimate mode of establishing the fact. For example: in the case of Tucker v. Calvert, 6 Call, 90, the question was as to the validity of a codicil to a will; and it was held that the party objecting to the probate was not confined to an enquiry into the testator’s sanity and signature, but might go into evidence as to fraud in obtaining the signature. So, in the present case, the question being as to the validity of the paper propounded as the true last ’ will of Lydia Hall, deceased, it is competent to show that it is invalid as a will by proving either that it was not written by her, or that it is a forgery and was forged by a specified person, whether that person be the propounder or another. We repeat, therefore, that the court erred in rejecting the evidence offered by the defendants in the issue to prove that the paper propounded was in the handwriting of the propounder, Thomas' Hall.
As, for the two errors aforesaid, the case will have to go back, it becomes unnecessary to consider at length the appellants’ (defendants in the issue) exception to the ruling of the court refusing to set aside the verdict of the jury, &c. In discussing the merits of the exceptions taken by the defendants in the issue to the ruling of the court—first, in refusing to exclude the said answer of the propounder to the question put to him on cross-
For the reasons aforesaid the decree appealed from must be reversed and annulled, the verdict of the jury, found on the trial of said issue, set aside, and the cause remanded to said circuit court with directions to empannel a jury for the re-trial of said issue at the bar of said court, and to be further proceeded in to -a final decree in the cause.
Decree reversed.