Forney v. Ferrell, 4 W. Va. 729

Forney v. Ferrell

4 W. Va. 729 | W. Va. | 1871

Lead Opinion

Maxwell, J.

A bill was filed in the circuit court of Brooke county, under the statute, to contest the validity of the will of Mary Forney, deceased, who was a married woman.

The court made an order that a jury should be empan-elled at the bar of the said court, on the law side thereof, to ascertain and determine by their verdict the issue, whether any, and if any, how much of the papers in the bill mentioned, dated respectively December 27th, 1861, and March 7th, 1866, be the will of the decedent Mary Forney.

A trial was accordingly had before a jury, during which numerous rulings of the court were made and excepted to, and about twenty bills of exceptions signed.

The 1st, 2d and 3d bills of exceptions are to opinions of the court admitting testimony of acts of the devisee J. B. Forney, tending to show undue influence exercised by him over the testatrix. What the acts were, does not appear from the bills of exceptions, but it appears that the acts referred to in the first bill occurred in the year 1848; those in the second, in 1852, and those in the third, in the year *7391866, while the will was executed in 1861, if executed at all. It is insisted that these acts were too remote from the time of the execution of the will to show undue influence over the testatrix at the time of its execution.

TJndue influence to avoid a will must be such as to overcome the free agency of the testator at the time the instrument was made. If undue influence be proved to have been exercised over the testatrix, both before and after the execution of the will, I cannot see why the facts should not be given in evidence to the jury, from which they might infer, if they should see proper, that undue influence was exercised over her at the time the will was made.

The fourth bill of exceptions is to the opinion of the court admitting to go in evidence to the jury a conversation in the presence of the said testatrix, and another conversation of the said testatrix as to what she would do at the time of her decease, with the property devised by her. I am unable to see any objection to this ruling.

The fifth bill of exceptions is to the opinion of the court allowing evidence of the oral declarations, admissions and conversations of the devisee, J. B. Forney, to go in evidence to the jury to prove undue influence by him over the testatrix. There are two other devisees, who were infants at the time of the trial. It is claimed that the declarations and admissions of the said J. B. Forney cannot be admitted in evidence against his eo-devisees. There is much conflict of authority on this question, but the weight of authority seems to be that the declarations, admissions and conversations of one devisee, cannot be admitted in evidence against his co-devisees. Shailer v. Bumstead, 99 Mass., 112; Clark v. Morrison, 25 Penn. State Rep., 453; Titlow v. Titlow, 54 Penn. State, 222; Osgood v. Manhattan Co., 3 Cowen, 612; Daw v. Brown, 4 Cowen, 492; Hanberger v. Peat, 6 W. & S., 431; Thompson v. Thompson, 13 O. State, 358; Blakey v. Blakey, 33 Ala., 616; Rogers v. Rogers, 2 B. Monroe, 324; Beall v. Cunningham, 1 B. M., 399; Brown v. Moore, 6 Yerger, 272.

I am unable to see any error in the sixth, seventh, eighth *740and ninth bills of exceptions. The exceptions to the opinion of the court taken in the tenth bill of exceptions, refusing to allow certain questions to be asked a female witness, are not well founded.

The doctrine on this subject was-fully considered in Howell’s case, 5 Grattan, 664, and settled as ruled by the court in this case.

Concurrence Opinion

Judge Berkshire

concurred.

*I think the court did not err in its ruling in the eleventh exception.

The twelfth exception presents a question of practical importance. It will be seen from this bill of exceptions, that theL plaintiffs in this issue simply offered the évidence necessary to admit the will to probate, and rested. The defendants in the issue then offered their evidence of the want of testamentary capacity, and that the will was procured by undue influence. The plaintiffs in the issue, in rebutting, proposed to offer further evidence of testamentary capacity, and to rebut the evidence of undue influence offered by the defendants, which the court refused to permit them to do.

It will be seen from the deposition of Mr. Bitchie, which is made a part of the bill of exceptions, that it is important evidence in the cause. lie was the draughtsman of the will. The only question is, whether it should have been offered in chief, or whether it was competent as rebutting evidence. And it would seem that no solid objection could be urged against its admissibility to rebut the evidence of the defendants in the issue, tending to show undue influence and want of testamentary capacity in the testatrix. There was error, therefore, in excluding it.

Exception thirteen raises the question, whether it is cdm-peteut, in cross-examination, to inquire if the witness had *741had any private conversation with the counsel of the party calling him, in relation to his testimony in the cause, prior to being sworn. Courtesy among counsel may tend to discountenance the practice, and the court would doubtless take care that the practice be not abused. Tet, no legal ground is perceived why the inquiry may not be made, and the answer insisted on, if deemed important in the case.

Exception fourteen, is to the charge of the court that, in addition to the proof of execution of the will by the subscribing witnesses, to the jury, the propounders of the will must also offer in evidence the record of the probate of the will from the recorder’s office, or from the records of the probate court where it was recorded.

The question whether the will had been admitted to probate or not, was no part of the issue before the jury. That was a question for the chancellor upon the pleadings and proofs. The jury was sworn to try whether the paper writings specified in the order directing the issue, purporting to be the last will of Mary Forney, were her true last will and testament, and hot whether the same had been admitted to record in the probate court. It was competent, therefore, to prove the issue on the part of the plaintiffs in that issue, by any other legal evidence, as well as by the record or certified copy thereof of the probate of the paper propounded as the will. The court erred, therefore, in the ruling set forth in said exception fourteen, requiring such record or copy thereof.

Exception fifteen, is to the refusal of the court to permit the copy of the will and probate filed as an exhibit with the bill, to be read as evidence to the jury by the propounders of the will, after the court had instructed the jury that such evidence was necessary for the propounders. The evidence was proper enough, and the ohl-y. objection would seem to be to the time of offering it. And on that ground it might have been excluded, had not the erroneous instruction of the court, as to its necessity., made it necessary to offer it.

Judge Redfield, after reviewing the authorities, sums up *742the law of undoe influence as follows: It must be such as: “1. To destroy the freedom of the testator’s will, and then make'his act obviously more the offspring of the will of others than of his own. 2. That it must be an influence specially directed towards the object of procuring a will in favor of particular parties. 3. If any degree of free agency or capacity remained with the testator, so that when left to himself he was capable of making a valid will, then the influence so controlling him, as to render his will of no effect, must be such as was intended to mislead him to the extent of making his will essentially contrary to his duty, and it must have proved successful to some extent, certainly.” 1 Redfield on Wills, 523-4-5.

The rule as laid down by G-reenleaf, is: “It must be an influence obtained by flattery, excessive importunity or threats, or in some other mode by which dominion is acquired over the will of the testator, destroying his free agency, and constraining him to do, against his free will, what he is unable to refuse.” 2 Green!, on Ev., sec. 688.

In Williams on Executors, the rule is laid down as follows: “The influence to vitiate a will must amount to force and coercion, destroying free agency; it must not be the influence of affection and attachment; it must not be the mere desire of gratifying the wishes of another, for that would be a very strong ground in support of a testamentary act; further, there must be proof that it was obtained by this coercion, by importunity which could not be resisted, that it was done merely for the sake of peace, so that the motive was tantamount to force and fear.” 1 Williams on Executors, 37.

In Green v. Green, 9 Gratt., 333, the rule is laid down by Judge Allen, as follows: As to undue influence, the influence resulting from attachment, or the mere desire of gratifying the wishes of another, if the free agency of the party is not impaired, does not affect the validity of the-act.

In Parramoure v. Taylor, 11 Gratt., 239, the court adopted the paragraph copied from Williams on Executors, 37, and *743recognized it as the law of Virginia in relation to undue influence.

The instruction given by the court, in exception sixteen,is not well nor clearly expressed, but is substantially to the effect that, if the testatrix made a disposition of her estate, which she did not desire, and did not intend, aud such disposition was so made by reason of the undue influence exerted upon her and operating at the time of making the same, it was such undue influence as would avoid the will, notwithstanding she was not controlled by any act of force, coercion or persuasion put forth at the time of signing the paper. And so understood, is not objectionable, for the freedom of the will is effectually overcome, and the act obviously more the offspring of another’s will than of the testatrix.

There was no error in the instruction given in exception seventeen, taken as an independent or abstract proposition, but as applicable to the peculiar issue and circumstances of the case, it was calculated to mislead the jury and induce a response in the verdict to but half the issue submitted for inquiry, and was therefore objectionable.

There is no error in the instruction given in exception eighteen.

Exception nineteen is, that the verdict is not responsive to the issue. The issue was that a jury be impannelled, “to determine by their verdict whether any, and if any how much, of the papers in the bill mentioned, dated respectively, December 27th, 1861, and March 7th, 1866, be the will of the said Mary Forney, deceased.” ' The verdict is, “We the jury find that the paper writing offered in evidence in this cause, purporting to be the will of Mary Forney, deceased, and dated December 27th, 1861, is not, nor is any part thereof, the last will of said Mary Forney, deceased.” Nothing is said, in the verdict, in response to that part of the issue relative to the paper dated March 7th, 1866. There was a motion to set aside the verdict for that cause, which the court overruled. ■ The verdict was clearly, therefore, obnoxious to the objection of not being responsive to the issue.

*744Exception twenty, is to the refusal to grant a new trial, on the ground that the verdict is contrary to the evidence. As the case must go before another jury, it is deemed proper to express no opinion on this point.

For the errors above stated, the decree of the circuit court must be reversed, with costs to the appellants, the verdict set aside, and a new trial awarded, and the cause remanded to the said circuit court for further proceedings to be had therein, in conformity with the views above indicated.

Degree reversed.

[The remainder of this opinion was prepared by Judge Brown, when a member of this court, and is now adopted ánd substantially concurred in by Judges Berkshire and Maxwell.]