101 Va. 507 | Va. | 1903
delivered, the opinion of the court.
This is an appeal from a decree of the Court of Law and Chancery of the city of Norfolk, declaring null and void a writing dated the 16th day of November, 1899, purporting to be the last will and testament of Joseph E. Kumrill, deceased, late of the city of Norfolk, who departed this life on the 29th day of November, 1899, after having made and published the paper above referred to, whereby he gave his diamond ring and gold watch and chain to his cousin, W. 0. Gray, and devised and bequeathed all the rest and residue of his estate, both real and personal, after payment of his debts, funeral expenses, and the cost of a tombstone upon his grave, to be equally divided between his aunt, Julia A. Topping, and his uncle, E. M. Gray.
This alleged will was probated in the Corporation Court of the city of Norfolk on the 5th day of December, 1899; and Gray and Morse, the executors named therein, qualified as such.
After the probate of the will, the appellee here, Earle Wayne Kumrill, an infant, suing by Ella Miars, his mother and .next friend, filed his bill in the Court of Law and Chancery of the city of Norfolk against the executors and beneficiaries named in the will, alleging, among other things, that he was the only child and heir at law of the said Joseph E. Kumrill; that the paper writing which had been probated as the will of Joseph E. Kumrill was not his will, because on the 16th day o.f November, 1899, the date of its execution, and for a long time prior thereto, and at all times subsequently, the said testator was of weakened, disordered, and deranged mind, and utterly without testamentary capacity; that the testator was unduly controlled and influenced by the beneficiaries therein named, or by some of them, in the execution of the said will, etc. To this bill the appellants filed their demurrer and answer, and upon a hearing thereon the demurrer was overruled, and an issue devisavit vel non directed.
While there were some exceptions taken to rulings of the court in the trial of the issue devisavit'vel non, the real question in the case is, was the paper writing purporting to be the last will and testament of Joseph E. Rumrill, deceased, executed by bim according to the forms of law, at a time when he possessed legal testamentary capacity and was free from undue influence ?
The learned judge below rested his decision on the fact that at the time the paper was executed the testator did not possess testamentary capacity.
The case having been submitted to the court below for the determination of all matters of law and fact, its judgment is entitled to the same weight with this court as though rendered upon the verdict of a jury, and this court will not disturb the finding of the trial court unless it has plainly decided against the evidence or without evidence. Reusens v. Lawson, 96 Va. 293, 31 S. E. 528, and authorities cited.
The facts necessary to correctly outline the case are these: Joseph E. Rumrill died at the early age of 38 years as the result of a dissolute and intemperate life.' He had been a member of the Virginia Pilot Association, and for some months before the execution of his alleged will had been discharged or superannuated by the pilot association because he could no longer be trusted to do the work of piloting a ship, the result of his life
Up to this time neither the beneficiaries of this alleged will, . nor any other of the testator’s relatives, had taken the slightest
On November 15, 1899, O. H. Ferrell, James A. Wilson, W. C. Gray, E. M. Gray, and Mrs. Topping met in the room of the testator. Just how this meeting was brought about does not clearly appear. But when the object of the meeting was mentioned to Rumrill, he said that he did not want to make a will that day—felt too tired. Thereupon all left the room, except Ferrell, who took a seat by Rumrill, and obtained from him the data from which he had the will written by a lawyer; and the next day, November 16, 1899, the same parties who were there The day before met in Rumrill’s room, the will was read to him, and he affixed his signature to the paper. At the time, Rumrill had liquor in his room, and a glass of toddy sitting near him, which he called for immediately after fixing his signature to the paper, and drank of it.
Upon the question whether or not the testator had testamentary capacity to dispose of his estate, it is well-settled law that, to establish such capacity, the proof must be clear and convincing.
In Tucker v. Sandidge, 85 Va. 556, 8 S. E. 654, it is said: “The onus prolandi is upon the party who seeks to set up the instrument in question, and this from the fact that the propounder alleges that the paper offered for probate is the true will of a free and capable testator, and hence it devolves upon him to make good his allegation (that is, to prove by competent testimony that the instrument is what it purports to be), for in every such case the conscience of the court is to be satisfied, and nothing short of clear and convincing evidence will suffice. This doctrine has been uniformly recognized and acted on by this court.” See also Chappell v. Trent, 90 Va. 901, 19 S. E. 314.
There is absolutely no conflict in the testimony in this case
Both of these physicians, of high standing in their profession, testify emphatically that the testator was not capable of making a will; that his impaired mental condition was of a. permanent nature, and constantly growing worse. The statement of Dr. Graves, corroborated by Dr. Leigh and others, is that the progress of the testator was downward; that he never improved, but showed a decided diminution in the power of recovery or recuperation; and that this was his condition mentally as well as 'physically.
While it is conceded that the testimony of attending physicians with respect to testamentary capacity is entitled to great weight, it is urged that unless the attending physician be present at the making of the will, and testifies as to the mental capacity of the testator at that time, the testimony of the subscribing witnesses is to be preferred. Whatever might be the influence of this argument in a case where it was not proven that the testator’s mental condition before, at the time of, and after the making of his will, until his death, was the same, it can have but little, if any, force in this case. According to appellant’s own testimony, the testator did not have an exceptional condition, of mind at the time of the making of his will. On the contrary, Mrs. Topping, one of the beneficiaries, testifies that she was with him all the time during his last illness, and that his mind never varied a single minute. It is true, she also says that it was “as sound as it could be”; but, unfortu
Dr. Graves minutely states the condition of the testator mentally, and reaches the conclusion that he was at no time during his last illness competent to make a will, and he- saw the testator at least once on the very day that the alleged will was executed. The substance of Dr. Graves’ testimony as to the condition of the testator during his last illness is that physically he was weak, worn, and weary, and in a general state of exhaustion, with-fixed features and a sort of weakly hanging jaw. Mentally, he was in a state of apathy or lethargy—a decided stupor. He was inactive, sluggish, morbid, and inert.. Efts eyes had some degree of vacancy—intermediate look—and were generally directed towards his feet. There was an occasional uplifting and shifty look of the eyes when he was aroused. He would return to his condition of stupor as soon as efforts to hold his attention were relaxed. He took no part in conversation, except to give monosyllabic answers to questions, and' would, as soon as his attention was released, relapse into listlessness.
This testimony, corroborated by the other attending physician, as well as by a number of witnesses testifying as to the physical and mental condition- of the testator, is by no means overcome by the subscribing witnesses to his alleged will, and
We are of opinion that the decree of the lower court, holding that the paper propounded by appellants as the last will and testament of Joseph E. Rumrill, deceased, is not his true last will and testament, is plainly right, and must be affirmed.
Affirmed.