147 Va. 105 | Va. | 1927
delivered the opinion of the court.
Wiley Sawyer was sixty-one years • old, his wife seventy-six. He owned a small tract of thirty-three acres of land in Norfolk county, upon which there was a
The testator made a number of wills. In 1898 he made a will by which he gave his whole estate, real and personal, to his wife. In the spring of 1924 he executed a will by which he gave “all of his real estate to his widow, Mrs. Ida Sawyer, as long as she lived, and after that time to the Baptist Orphan Asylum at Salem, Virginia.” About two weeks thereafter he came to the scrivener and stated that the former will did not suit him, and requested him to prepare another will, which was done. In this draft he had the name of the beneficiary left blank. He declined to tell the scrivener the name of the beneficiary. “He said he would have that put in later.” On April 19, 1924, he gave directions to an acquaintance to prepare another will. This was done and on the following day he returned and the will was read over to him two or three times, and explained to him, and he approved it and executed it in the presence of two witnesses. He gave the directions for the preparation of this will. The second, third, fourth and fifth clauses of this will were as follows:
“Second: I loan to my beloved wife, Ida W. Sawyer, for her support and maintenance during her natural life, all of my estate, both real and personal, after the payment of my debts as aforesaid.
“Third: After the death of my wife, Ida W. Sawyer, I give my estate, both real and personal, to my friend, Pattie V. Forehand, to be free and clear of incumbrances and without being molested by anyone whomsoever.
“Fourth: My beneficiary, Prattie V. Forehand, and executor hereinafter named are to pay out of the estate any debts, doctor’s bills and burial expenses of my wife above mentioned.
*109 “Fifth.: I nominate and appoint nay friend, Pattie V. Forehand, to be my sole executor of this my last will and testament.”
This will appears to have been delivered by the testator to Mrs. Forehand, who took it to her lawyer, Mr. Jas. G. Martin, for inspection and advice, and he suggested a change which resulted in the execution of the will in controversy, dated June 12, 1924, which is copied in the margin.
Mr. Jas. G. Martin, the draftsman of the will, stands high at the bar, and in point of integrity of character no man stands higher. He only knew the testator in connection with the drawing of the will of June 12, 1924. A week or ten days before the will was drawn, Mrs. Forehand, for whom he had previously attended to some business, came to his office and showed him the will of April 19, 1924, and asked his opinion about it. He testified that “Mrs. Fore
Mr. Martin further testified in chief as follows:
“Q. Mr. Martin, when Mr. Sawyer came to your office on the 10th of June, as related by you, and went over with you the material — what was to be put in*112 the will, did he indicate by his speech, manner, or action that he was anything but normal in his mind?
“A. He did not. He was entirely in possession of all of his faculties. He had quite an active mind, as far as I could tell. I always, in drawing a will, try to ascertain two things. I satisfy myself as to whether the testator is of sound mind and whether he is acting of his own free will. I was convinced on both of those subjects that he was all right.
“Q. He gave you the information and instructions on the 10th and then on the 12th returned to your office at which time and place the will that you drew was read over to him. Was that will drawn according to his instructions?
“A. It was,' sir. This is a carbon copy. I ought to use the original, I reckon, if you will hand me the original. I kept the carbon in my file. This clause: ‘and these payments shall be a charge against all my real estate which I may leave.’ I don’t think he told me to make that a charge in the first conversation, but I merely put it in to make it state that the $200.00 would have to be paid and the legal way to carry it out was to make it a charge, and I put it in as a charge to bind the real estate for the payments.
“Q. It was security for Mrs. Sawyer?
“A. Security that the will would have to be carried out absolutely as written.
“Q. Now, at the time, on the 12th day of June, can you say whether or not Mr. Sawyer acted normally as regards his mental activity?
“A. He acted entirely normally and entirely intelligently.
“Q. Can you say to the jury whether, on the 10th or the 12th and at the time he came here to acknowledge his will, that he at any time exhibited to you or in your presence anything but a normal mind?
*113 “A. He never did. If he had I would have hesitated to draw the will. I didn’t hesitate at all because he was perfectly all right as far as I could tell.
“Q. Could you tell the age, or do you know the age, •of Mr. Sawyer?
“A. I don’t know the age. I would guess he was about sixty. I have heard since he was sixty-one, but Ii,don’t know his age.
“Q. Was he a feeble, decrepit old man, or to the contrary?
“A. The times I saw him, which was on those two days, he impressed me as a wiry, active kind of fellow.
“Q. When you came over here you said you read the will in the presence of these three witnesses. Did Mr. Sawyer acknowledge the will as being his last will and testament?
“A. He did, in the regular, ordinary, legal course.
“Q. Were all three witnesses present together with Mr. Sawyer and did he indicate his desire to have them witness the will?
“A. They were, and he did that there in this room.
“Q. Everything was done regularly and according to law?
“A. Yes; and I made my usual memorandum on my file which I have here if anybody wants to see it.
“Q. Mr. Martin, at the time that Mr. Sawyer was in this court house and acknowledged and signed his will by his mark, was Mrs. Forehand present?
“A. I don’t believe she ever came into the court room. I don’t recall her being in this room at all.
“Q. 0!n the 10th of June and the 12th of June, at the times you say Mr. Sawyer and Mrs. Forehand came into your office, did she indicate either by speech or action a desire or purpose to direct his mind at his doing anything that he should not do?
*114 “A. She didn’t. He acted entirely freely.”
No material change in this testimony was elicited on the cross-examination, though the following questions and answers throw light on the preparation of the will:
“Q. Tell me why the question of specifically giving the mules to Mrs. Sawyer arose?
“A. It merely arose because I was directed to pfit it-that way. Why he wanted to give them to her I don’t know.
“Q. Was anything said about the farm implements, wagons, poultry and stock, household furniture and whatnot?
“A. No, sir.
“Q. Just these two mules?
“A. Just the two mules and $200.00
“Q. Did it occur to you that Mrs. Sawyer would have-little use for the two mules if the farm was taken away from her?
“A. I didn’t consider that. I am not sure of this, but-I think the old gentleman stated that she could not handle the farm very well. I would not swear to that absolutely because I am not quite clear on that.
“Q. I suppose Mrs! Forehand did most of the talking in your office?
“A. I don’t think so. I think they came entirely in a-friendly way—
“Q. I know it.
“A. And did. what you would expect normal people^ together, both talking.
“Q. Isn’t it a fact that Mr. Sawyer had very little to-say?
“A. I think he said all I would expect any man making a will to say?
“Q. And just answered ‘yes’ and ‘no’ in your presence?
*115 “A. He did more than that. He directed me how to draw the will. I would not have drawn it in that way if he had not wanted it done.”
It developed afterwards that his wife had loaned him the money with which to purchase the mules.
The three subscribing witnesses testified to the due execution of the will and that Mr. Martin was present at the same time, and that they did not think anyone else was present in the room at that time. They had no recollection of anything that was said or done by the testator, and the only one of them to whom the question was asked said he did not know whether or not the will was then read, but would not doubt it if Mr. Martin said that it was. He did most of the talking. They saw nothing abnormal about the testator, and would not have subscribed as witnesses if they had any suspicion that he was of unsound mind.
Dr. L. L. Sawyer, the family physician, testified that the testator had Bright’s disease for several years prior to his death, but that he attended to his business and worked his land, and that prior to his last illness, three or four weeks before Ms death, he was in a fair mental condition, by which he meant that “he would come to me and talk on and tell me what he wanted, and if Ms wife was sick he would tell me how she felt and wanted me to go to see her.” He acted in a rational and sane way.
Dr. Burfoot never attended the testator except in November, 1921, when he fell off the wagon and got hurt, and was unconscious for about half an hour. He saw him the next day and “he gave no indication that Ms mind had been affected by the blow.” The real trouble was a fracture of the spinus process on the shoulder blade, for wMch alone Dr. Burfoot treated Mm, but did not see him after the second day, as he wanted Dr. Sawyer.
In addition to the witnesses mentioned, a number of neighbors and acquaintances were examined on both, sides. This testimony was conflicting.
Looking only to the testimony of lay witnesses for-the contestants, we find it of but little weight or value. The will was regarded by them not only as an unnatural will, but as an unlawful will — -that a man had no right to make a will in favor of a stranger to the-detriment of his wife — and the friends and neighbors of the widow began to reflect and recall every word and act of the testator that in their opinion showed that he was not mentally sound.' These witnesses were permitted to testify as to words and conduct-of the testator, and to give their opinion based thereon, as to his mental condition. None of them testify directly that he was mentally incompetent to make a-will, but think he was “not just right,” or that there = was something the matter with him, or. equivalent-expressions, meaning, however, that he was incompetent. A witness who wrote one of the earlier wills and attested its execution, “had been noticing him for a-couple of years and he had never been exactly right, since” he fell off the wagon. Another witness who was one of the attesting witnesses to the will of April 19, 1924, thought he was incompetent, though the-
“Q. You say from his actions you imagined he was not himself. What were those actions?
“A. Well; one was in the different wills I heard he had made.
“Q. What?
“A. One was the different wills he made showed that the man was wrong som.ewb.ere mentally, to my mind. I may be wrong.
“Q. What other things did he say?
“A. I don’t know that I could especially notice— mention anything.
“Q. Did you observe he was physically very feeble?
“A. Yes, sir.
“Q. What did you observe about his physical condition?
*118 “A. I just imagined he was not the same man he was. He was gradually growing weaker.
“Q. What do you mean by ‘just imagined’? Could you see it or not see it?
“A. I imagined I could see it.
“The court: Are you through with the witness?
“Mr. Eason: I want to pursue it until I get a reasonable answer.
“The court: Ask him the question.
“Mr. Eason: If he would just get away from the word ‘imagine.’
“By Mr. Eason:
“Q. What do you know?
“A. If I said what I really knew I don’t know that I really know anything.”
His half brother testified that he was gradually “going down all the time and getting worse and worse” for the last two years; that he often complained of his head and at times threatened to kill himself, and that “he didn’t have no mind.” His testimony is too lengthy to give in detail, but furnishes no more satisfactory reason for his conclusions than that of other witnesses. Nor is the testimony of the widow much better. The latter testified that “he would go around in deep studies and sit around in the room with his face in his hands and get in these moods.” She also testified that she loaned him $500 to pay for the mules which were worked on the farm, and that the income from the farm was sometimes more than $200 a year and sometimes less. She testified that “he was not in his right mind all the time,” and reiterates her statement about his “spells” of headache, their apparent effect on his mind and her treatment. With reference to the relations of her husband with Mrs. Forehand, she testified as follows: “Tell us who you
“A. That was the very one. She stepped right in between me and my husband.”
The testator attended to his own business up to the time of his death. No committee was ever appointed to take charge of his estate, nor does the record disclose that the testator had the reputation of being of unsound mind, or that his sanity was ever the subject of comment, or that any of the witnesses for the contestants, prior to the death of the testator, ever discussed with each other, or disclosed to each other or to the contestants, the facts to which they have testified.
The testator was an uneducated man, and could not read or write.
The record discloses no evidence of any undue influence exdrcised by Mrs. Forehand over the testator. Her whole connection with the will, so far as disclosed by the record, is shown by the testimony of Jas. G. Martin, hereinbefore recited, and is not of sufficient importance to justify a discussion of the subject of undue influence. This leaves as the only question for discussion the mental capacity of the testator.
The will is an unnatural will, not such an one as might reasonably have been expected of a husband with an aged and dependent wife, and no descendants, and this is a fact relevant to the question of testamentary capacity, but not of itself sufficient to establish such incapacity. When once the capacity of the testator has been established, his will must stand as the reason for his action. Be he wise or unwise, he is the disposer of his own property.! Neither old age, partial loss of memory, eccentricities, sensitiveness, high temper, the exhibition of passion on small provo
The circumstances of this case appeal strongly to our sympathy, as they did to that of the jury, but the hardships of a particular case cannot be permitted to overturn fixed principles of law established for the general good of society, and which are necessary guides for future conduct.
Lay witnesses who have observed the testator in his lifetime may state facts which came under their observation, and may give their opinions based upon the data observed as to the mental capacity of the testator. Fishburne v. Ferguson, 84 Va. 87, 106, 4 S. E. 575; Cropp v. Cropp, 88 Va. 753, 759, 14 S. E. 529; Whitelaw v. Sims, 90 Va. 588, 19 S. E. 113. But frequently, as in the instant case, the data observed do not warrant the opinions expressed, and where that is the case, the opinions are of little, if any, value on the question of mental capacity. The observation is generally not very close, and the resulting impression usually passes out of the mind of the observer till recalled by some subsequent act of the party observed. Such testimony is entitled to but little weight. Howard v. Howard, 112 Va. 566, 570, 72 S. E. 133.
On the other hand, the testimony of those present at the factum — when the will is executed — is
Two of the subscribing witnesses, Hugh Johnston and A. A. Wendel, the sheriff, were known to the testator and were suggested by him to Mr. Martin as witnesses to his will, and their presence was secured by Mr. Martin. It is true that little transpired in the way of conversation at the time the will was executed, as Mr. Martin did most of the talking, but they all concur in
The family physician of the testator also thought the testator was competent to make a will. It is said that great weight is always attached to the testimony of the family physician on the question of capacity to make a will. Shacklett v. Roller, 97 Va. 639, 34 S. E. 492.
No witness for the contestants testified that in his opinion the testator was not competent to make a will, nor does any one of them testify as to his mental condition on the day the will was executed. It may be said of the testimony for the contestants, as was said of similar testimony in Howard v. Howard, 112 Va. 566, 570, 72 S. E. 133, 134: “It consists of mere opinion of witnesses who have in the most transient and casual way seen the person whose mental capacity is assailed, and whose conclusions with respect to the subject of enquiry rests upon no substantial basis. The testimony of witnesses who were present at the factum is more to be relied on than the opinion of other witnesses based
The same conclusion is arrived at, upon similar testimony, in Wampler v. Harrell, 112 Va. 635, 72 S. E. 135, and Wooddy v. Taylor, 114 Va. 737, 77 S. E. 498. In the latter case there was a demurrer to the evidence by the proponents of the will, which was sustained.
Huff v. Welch, 115 Va. 74; 78 S. E. 513, was heard in this court “as upon a demurrer to the evidence;” the appeal being by the proponent of the will. It cites, and quotes from, with approval, the last three mentioned eases. The facts were similar, in many respects, to the facts in the instant case, and the verdict against the will was set aside as “a plain and palpable deviation from the proof in the case.”
In the instant case the will is apparently a very unnatural one, and this is the strongest evidence against it, but outside of this the evidence of testamentary incapacity is very weak. We say the will is apparently an unnatural one, but it may be that the testator thought that an annuity of $200 a year, and doctor’s bills and funeral expenses were worth more to his wife, at her advanced age, than a life estate would be, especially in view of what his widow testified that they realized from the land. He also provides for the return to her of the mules for which she had advanced the purchase price. The latter provision shows that he had in mind, when directing the preparation of his will, the obligation to refund this sum to his wife. This was of itself some evidence of testamentary capacity.
We attach little, if any, weight to testimony of two subscribing witnesses to former wills impeaching the mental capacity of the testator at the time they subscribed. Such testimony is always viewed with
There is no suggestion of senile dementia. The testator died of Bright’s disease, but the testimony of the contestants was directed chiefly to the supposed effect of the fall from the wagon in 1921, when the testator was rendered unconscious for half an hour. This was sought to be connected with the Bright’s disease, but we think unsuccessfully. Dr. Eason, who testified for the contestants, was not called to see the testator till December 6, 1924, when the testator was in the last stages of Bright’s disease. He died December 26, 1924. He was probably not capable of making a will between these dates, but Dr. Eason knew nothing of his mental condition in June, 1924, when the will was executed.
The witnesses present at the execution of the will of June 12, 1924, established clearly and plainly the mental capacity of the testator at that time, and this testimony is not contradicted except by inferences drawn from testimony of little value in itself.
The verdict of the jury finding against the validity of the will is plainly contrary to the evidence. The judgment of the trial court will, therefore, be reversed, the verdict of the jury set aside, and the case remanded to the trial court with directions to admit to probate the will in the proceedings mentioned, signed by Wiley Sawyer, bearing date June 12, 1924, as the true last will and testament of said Wiley Sawyer. The plaintiff in error will also be given a judgment for her costs.
Reversed and remanded.
"In the name of God. Amen. I, Wiley Sawyer, of the county of Norfolk, in the State of Virginia, do make, publish and declare this my last will and. testament, hereby revoking all wills by me heretofore made.
“1. I direct that my body shall be decently buried and that my just-debts shall be promptly paid by my executrix.
“2. I will, devise and bequeath all my property of every kind to my friend, Pattie V. Forehand, absolutely and in fee simple; except that I bequeath my pair of mules to my wife, Ida W. Sawyer; and except that said Pattie V. Forehand shall regularly pay to my said wife 1200.00 each year on the first day of each January after my death so long as my said wife shall live only, and these payments shall be a charge against all my real estate which. I may leave; and likewise said Pattie V. Forehand shall pay any necessary doctor’s bills of my said wife and reasonable burial expenses of my said wife..
“3. I appoint said Pattie V. Forehand my executrix.
“In testimony whereof I have hereunto set my hand this 12th day of June,. 1924.
his
“WILEY X SAWYER.
mark
“Signed, published and declared by the testator, Wiley Sawyer, as and. for his last will and testament in the presence of all of us_ present together with the testator and each other; and in his presence and in the presence of each other, all present together at the same time with the testator, we have at his request hereunto subscribed our names as witnesses.
“HUGH JOHNSTON.
“A. A. WENDEL.
“V. C. RANDALL.”