139 W. Va. 189 | W. Va. | 1953
This suit in equity was instituted in the Circuit Court of Mercer County in October, 1951, by Stuart L. Ritz, Jean Ritz Marshall, Kathryn Johnson Hurd, Nancy Johnson Sigford, Rose Johnson Robinson and Jean Johnson Crouch, against Alva Ritz Kingdon, individually, Alva Ritz Kingdon, Executrix of the last will and testament of James M. Ritz, deceased, and Charles L. Ritz, to impeach a testamentary writing dated July 10, 1950, and admitted to probate in the office of the Clerk of the County Court of Mercer County on January 2, 1951, as the last will and testament of James M. Ritz, who died in Blue-field on December 29, 1950. The plaintiff Stuart L. Ritz is a brother, and the other plaintiffs are nieces of James
During the trial, which began May 27, 1952, and ended on June 12, 1952, the circuit court overruled a motion made by the defendants at the conclusion of the evidence introduced by the plaintiffs to direct a verdict for the defendants and a similar motion made by the defendants at the conclusion of all the evidence introduced by the respective parties. The court also refused to give Instruction No. 1, offered by the defendants, which would have directed the jury to return a verdict that the paper writing dated July 10, 1950, and probated January 2, 1951, was the last will and testament of James M. Ritz. At the instance of the defendants and over the objection of the plaintiffs, the court gave an instruction which told the jury that James M. Ritz was mentally competent to make a will when he executed the instrument dated July 10, 1950.
By decree entered October 16, 1952, the circuit court, a special judge sitting in lieu of the rgular judge of that court, overruled the motion' of the defendants to set aside
The instrument dated July 10, 1950, signed by James M. Ritz, witnessed by J. E. Wagner, Jr., and James Harold Martin, the lawyer who prepared it, and probated January 2, 1951, by the Clerk of the County Court of Mercer County as the last will and testament of James M. Ritz is in these words:
“Will
“I, James M. Ritz, of Bluefield, Mercer County, State of West Virginia, being of sound mind and disposing memory, do hereby make, declare and publish this, my last will and testament, hereby revoking any other will or wills at any time heretofore made by me, this, my said last will and testament being in manner and form as follows to-wit:
“First: I direct that all my just debts, funeral expenses, and costs of administering my estate, shall be paid out of the corpus of my estate as soon after my death as conveniently possible.
“Second: I hereby bequeath and devise all my property, real, personal and mixed, wherever the same may be situate, as follows, two-thirds (2/3) thereof to my sister, Alva Ritz Kingdon, and one-third (1/3) thereof to my brother, Charles L. Ritz.
“Third: I hereby nominate and appoint the said Alva Ritz Kingdon as Executrix of my estate, and she shall have full power and authority to act on her own personal bond, and no surety shall be required on such bond.
“In witness whereof, I have hereunto set my hand this the 10 day of July, 1950, at Bluefield, West Virginia.
“James M. Ritz, Testator.”
“Last Will and Testament of James M. Ritz
“I, James M. Ritz, of the City of Moundsville, Marshall County, West Virginia, being of sound and disposing mind and memory, declare this to be my Last Will and Testament, and hereby revoke any and all former wills and codicils heretofore made by me.
“First: It is my will that all my just debts, funeral expenses, estate taxes and costs of administration be fully paid out of my estate.
“Second: I give and bequeath the sum of Five Hundred Dollars ($500.00) to J. Harold Snyder of Moundsville, West Virginia.
“Third: All the rest, residue and remainder of my estate, real, personal and mixed, wheresoever located, to which I may be seized or possessed of or entitled to at my death, I give, bequeath and devise an undivided one-third (1/3) unto my brother, Charles L. Ritz, of Williamson, West Virginia and the remaining undivided two-thirds (2/3) unto my sister, Alva Ritz Kingdon, of Blue-field, West Virginia.
“Fourth: I hereby appoint my said sister, Alva Ritz Kingdon, as sole executrix of this my Last Will and Testament and I direct that no surety be required on her bond.
“In witness whereof, I have hereunto set my hand and seal this 2nd day of May, 1950.
“James M. Ritz (Seal)
In the course of the trial, which lasted for a period of approximately three weeks, many witnesses testified in behalf of the respective parties and many documentary exhibits were introduced in evidence.
The plaintiffs, as contestants, offered the testimony of twenty-five witnesses, much of which related to the questions of the mental capacity of James M. Ritz and undue influence upon the part of the defendant Alva Ritz King-don during the period February 12, 1950, to December 17, 1950, and many written exhibits, among which was included a number of letters written by the defendant Alva Ritz Kingdon to her brother the plaintiff Stuart L. Ritz and her niece the plaintiff Nancy Johnson Sigford and to Harold Snyder and Mrs. Harold Snyder, to impeach the validity of the written instruments signed by James M. Ritz dated May 2, 1950, and July 10, 1950.
In rebuttal the defendants offered the testimony of forty-one witnesses and introduced many additional written exhibits in evidence.
As evidence in surrebuttal the plaintiffs introduced
The testimony and the exhibits introduced in evidence by the respective parties cover approximately 1600 pages of the printed record and, from this mass of evidence, it 'is obvious that any narrative other than a general statement of the material facts which bear upon the controlling issues in the case would unduly extend the length of this opinion.
James M. Ritz, an able, experienced and successful lawyer and a man of unusual mental powers and physical energy and vigor, died in a hospital in Bluefield, Mercer County, West Virginia, on December 29, 1950, from an illness which began in December, 1949, and from which he never completely recovered. The cause of his death appears to have been bronchopneumonia in combination with and contributed to by generalized arteriosclerosis. At the time of his death he was seventy nine years of age. He never married and his surviving next of kin and heirs at law were the plaintiff Stuart L. Ritz, a brother, the plaintiff Jean Ritz Marshall, and Elinor Ritz McQuail, daughters of Russell S. Ritz, a deceased brother, the plaintiffs Nancy Johnson Sigford, Katherine Johnson Hurd, Rose Johnson Robinson and Jean Johnson Crouch, daughters of Rose Ritz Johnson, a deceased sister, and the defendants Alva Ritz Kingdon, a sister, and Charles L. Ritz, a brother. Prior to the institution of this suit Elinor Ritz McQuail conveyed any interest claimed by her in the estate to the plaintiff Jean Ritz Marshall and for that reason Elinor Ritz McQuail is not a party to this litigation.
James M. Ritz had lived for about thirty-eight years at a small hotel in Moundsville about twelve miles south of Wheeling where he maintained a law office which adjoined the office of another Wheeling lawyer, Edmund L. Jones, who at times assisted James M. Ritz in certain legal matters. He had little or no social or home life and not many close friends. Except as to articles of personal wearing apparel he was frugal in his standard of living
In his conversation with friends and acquaintances he made only occasional mention of Ms relatives and his association with any of them was infrequent and of short duration though such relation as he had with them appear generally to have been friendly and cordial. At intervals during a period of several years before his sickness and death he made contributions in substantial amounts to his sister Alva Ritz Kingdon at whose home some of her nieces, who are plaintiffs in this suit, at times resided. While he stayed at the hotel in Moundsville, which was owned or operated by Fred Snyder, Harold Snyder, his son, and Audrey Snyder, the wife of Harold Snyder, Ms association with the Snyders was close and friendly. He was treated by them almost as a member of their family and at times he made gifts of suits of clothes to the Snyders and small sums of money to their young children.
In December, 1949, James M. Ritz developed a cold and in February, 1950, he became seriously ill. On Friday, February 10, 1950, a local physician in Moundsville who attended him told him that he would not recover and the
On February 10 or February 11, 1950, the evidence as to the exact date being somewhat conflicting, Harold Snyder and his wife by telephone talked to the defendant Alva Ritz Kingdon, who was then at Bluefield, informed her of the serious condition of her brother and suggested that she come to Moundsville to see him although, according to the Snyders, James M. Ritz had told them that he did not want her to visit him. Whether the telephone conversations between the Snyders and Alva Ritz King-don occurred on February 10 or February 11, the evidence is clear that she left Bluefield by bus on the evening of Saturday, February 11, that she arrived in Moundsville in the early morning of February 12, and that upon her arrival she went to the hotel where she saw Harold Snyder who testified that among the first words she spoke
Shortly prior to or on May 1, 1950, and while James M. Ritz and Alva Ritz Kingdon were staying at the hotel, she went to the law office in Moundsville of Chauncey M. Hinerman, a close friend of James M. Ritz, and told him that her brother wanted him to prepare a will by which she would receive two-thirds and his brother Charles L. Ritz would receive one-third of his estate and in which she should be named as executrix. The next day she returned to his office and informed him that her brother wanted to include a bequest of $500.00 to Harold Snyder. Though Hinerman then entertained doubt as to the competency of James M. Ritz to make a will he prepared a draft and took it to the hotel and presented it to James M. Ritz who was there with Alva Ritz Kingdon. This draft was never signed by James M. Ritz who apparently altered it with certain pencil markings; and a copy which Hinerman produced while he was testifying during the trial, and which despite his denial that he had named himself as co-executor in the draft which he prepared, contained a provision which named him as co-executor.
Later the same day, May 1, 1950, Alva Ritz Kingdon, went to the office of Martin Brown, a Moundsville lawyer who was also a friend of her brother, but, finding that he was ill and absent from his office, she returned to the hotel. She then went to the office of Stephen D. Narick,
James M. Ritz in the prior conversation had inquired of Narick about witnesses to the proposed will and Narick had suggested that he and J. D. H. Sullivan, who was a former mayor of Moundsville and who at the time was engaged in the insurance business with his office in the same building in which Narick’s law office was located, act as attesting witnesses. James M. Ritz was well acquainted with Sullivan and approved the suggestion; and after the draft had been corrected as indicated he executed it at the hotel in the presence of Narick and Sullivan as attesting witnesses. At the time it was executed Alva Ritz Kingdon was not present. After it was executed the instrument was left with James M. Ritz. It was dated
Narick and Sullivan both testified that James M. Ritz freely executed the instrument in their presence; that neither Alva Ritz Kingdon nor any other person was then present; and that at the time he executed it he was mentally competent to make a will. Narick made a written memorandum of the transaction which contained the statement that at the time James M. Ritz appeared to be in good health. That statement was shown to be erroneous and, because of it, the plaintiffs vigorously attack his testimony in its entirety.
Many witnesses testified as to the mental and physical condition of James M. Ritz and the close association of Alva Ritz Kingdon with him during the period March 6, 1950, when he left the hospital and returned to the hotel, and May 20, 1950, when he left for Bluefield. Several witnesses, including Harold Snyder who, after disclaiming and relinquishing by writing dated December 5, 1951, any interest in the estate of James M. Ritz under the instrument dated May 2, 1950, or otherwise, was called as a witness by the plaintiffs, and his wife, who saw and .conversed with him frequently, Hinerman and Schmidt, who knew him well and talked to him about his will, and several other persons, who either saw him or saw him and conversed with him casually and infrequently, expressed the opinion that upon those occasions he was noticeably ill physically and was mentally incapable to make a will. Several witnesses also testified that when they saw' him Alva Ritz Kingdon was present or if not initially present soon appeared and that he was seldom away from her or out of her presence. Some of these witnesses, however, admitted that at times she made trips from Moundsville to Wheeling unaccompanied by her brother and occasionally left him at the hotel and went alone to different places in Moundsville on errands of varied lengths of time.
On the contrary a number of witnesses, who were well acquainted with.James M. Ritz and who saw and talked
On May 20, 1950, James M. Ritz left Moundsville with Alva Ritz Kingdon and her son-in-law who at her request came by automobile from his home in Charleston to Moundsville to take them and his personal effects to Bluefield. They spent that night in Charleston at the home of the son-in-law of Alva Ritz Kingdon and on the following day he drove them to her home in Bluefield where from the time of his arrival James M. Ritz resided with her until December 17, 1950, when he entered the
On May 22, 1950, the day after his arrival in Bluefield, James M. Ritz went to one of the local banks accompanied by Alva Ritz Kingdon, who was one of its customers. There he met J. E. Wagner, Jr., one of its vice presidents, its cashier, and an employee who subsequently served him in transacting financial matters on several occasions. Between that date and December 6, 1950, the date of his last visit, he came to the bank on an average of twice each month and made additional deposits from time to time to his personal account. He also opened an account for funds of a trust estate with which he was connected and cautioned the employee of the bank to keep separate the deposits in each account. On each visit he was accompanied by his sister but he personally looked after
In late June or early July, 1950, Alva Ritz Kingdon by telephone called James Harold Martin, a lawyer who had been practicing in Bluefield since -August, 1928, and requested him to come to her home to see her brother who desired to consult him about a matter the nature of which she did not disclose. In response to this request Martin later went to her home where she introduced him to James M. Ritz with whom he had not been previously personally acquainted. They engaged in'a short general conversation and after she left the room James M. Ritz told Martin that he wanted to make a will and informed him of the provisions he desired to have incorporated in it. He told him that he wanted to be designated in the will as a resident of Bluefield, Mercer County, but he did not mention any earlier will. Martin made notes and later prepared a draft of a will which he took to James M. Ritz and discussed with him, the two being alone at the time. He read the draft to James M. Ritz who approved it and told him that it contained exactly what he wanted. He then mentioned its execution and told him he preferred to execute it at the bank, that he knew Mr. Wagner at the bank where he did his business, and that he wanted him to be a witness. Martin left the draft with James M. Ritz and he next saw the instrument at the bank in connection with its execution on July 10, 1950.
In the meantime, Alva Ritz Kingdon made an appointment with Wagner and Martin to meet James M. Rit^^t
During the period May 21 to December 17, 1950, many persons who saw and talked with James M. Ritz testified as witnesses concerning his mental capacity and all of them expressed the opinion that he was of normal mentality except Mrs. Russell S. Ritz who, on the occasion of her only visit with him at the home of Alva Ritz Kingdon, believed that he was “rather mentally confused”. During that period, by means of letters dictated by him, written by Alva Ritz Kingdon, and signed by him, he engaged in business transactions with Chauncey M. Hinerman, who was at Moundsville, and Edmund L. Jones and Wright Hugus, who were at Wheeling. The transaction between him and Hinerman involved the collection by Hinerman of an indebtedness owing to James M. Ritz and the execution by him at Hinerman’s request of a release of the lien of a deed of trust. The transaction between James M. Ritz and Edmund L. Jones related to a trust in the administration of which Jones assisted. The transaction between James M. Ritz and Wright Hugus related to certain indebtedness owed to James M. Ritz by a woman of whose
The physician who treated James M. Ritz during the period May 26, 1950, until his death in December of that year, and who examined him at a hospital on May 27, 1950, in his report of the examination, stated that his impression was that he was afflicted with senility. In testifying on that point he stated that he used that word to describe the advanced age of his patient and that he did not use it to mean enfeeblement of mind or body or to indicate any impairment of his mentality. Two physicians called as witnesses for the plaintiff, testified, however, that in medical terminology the word meant both mental and physical deterioration in aged persons.
The plaintiffs introduced in evidence several letters written by the defendant Alva Ritz Kingdon to her brother, the plaintiff Stuart L. Ritz, a resident of the State of New York, and her niece, the plaintiff Nancy Johnson Sigford, and also two letters from the plaintiff Stuart L. Ritz to the defendant Alva Ritz Kingdon. Some of these letters were written before and others after the death of James M. Ritz. In letters to Stuart L. Ritz in March and April, 1950, she told him of the illness of James M. Ritz and informed him of his condition. In other letters from Bluefield in May and November, 1950, she also told him of her brother’s condition and suggested that he visit him at her home.
Alva Ritz Kingdon did not tell any of the plaintiffs or her niece Elinor Ritz McQuail that James M. Ritz had executed the instruments dated May 2, 1950, and July 10, 1950, or inform them of the contents of either, although she saw Stuart L. Ritz and Mrs. Russell S. Ritz in Florida
In a letter dated April 28, 1951, in reply to his letter dated April 26, 1951, and in a later letter dated May 7, 1951, following another letter from him to her dated May 1, 1951, she accused her nieces, three of the plaintiffs, of improper conduct, made derogatory statements about them, another niece, her deceased brother Russell S. Ritz and his wife, mentioned the care and the assistance which she had formerly given each of her nieces, and complained of their selfishness and lack of appreciation of her treatment of them. She also cautioned him about the institution of litigation to contest the will and intimated that such litigation would involve him in court costs and expenses. She testified that she was hurt and angry when she wrote to him; that she was sorry she had made the critical statements in the letters but that they were substantially true; and that she had never communicated to James M. Ritz the information that she had later written in the letters to Stuart L. Ritz.
There is testimony by some of the plaintiffs, nieces of Alva Ritz Kingdon, that she did not treat them and their sisters fairly during their younger years while they were at times living in her home several years before the death of James M. Ritz. She denied that she had mistreated or neglected any of them during that period and stated that she had treated and cared for them in the same manner in
The principal contentions of the defendants upon this appeal are that the evidence shows clearly that at the time James M. Ritz executed the instrument dated May 2, 1950, and the instrument dated July 10, 1950, he was mentally competent to make a will and that the evidence is not sufficient to establish undue influence upon the part of the defendant Alva Ritz Kingdon. On the contrary the plaintiffs insist that, under the evidence, James M. Ritz lacked testamentary capacity when he executed each instrument and the defendant Alva Ritz Kingdon procured the execution of each by the exercise of undue influence; and they vigorously contend that the verdicts of the jury are amply supported by the evidence.
To reverse the decree of October 16,1952, the defendants assign as error the action of the circuit court: (1) in excusing one juror from the panel of jurors and in excluding from it two jurors upon challenge for cause; (2) in permitting the plaintiffs, over the objections of the defendants, to introduce improper and prejudicial evidence to the jury; (3) in refusing to give Instructions No. 1 and No. 12 requested by the defendants; (4) in permitting the attorneys for the plaintiffs to make improper statements to the jury; (5) in confirming the verdicts rendered by the jury because they are contrary to the law and the evidence and are not supported by the evidence; (6) in refusing to set aside the verdicts of the jury and grant the defendants a new trial; (7) in entering the final decree of October 16, 1952, upon the verdicts of the jury; and (8) in decreeing costs against the defendants Alva Ritz Kingdon and Charles L. Ritz.
The first assignment of error relates to the selection of the jury and the action of the court in excusing one member of the panel and in rejecting two other members of the panel upon challenge for cause. The proceedings had in connection with the selection of the jury, the evidence bearing upon the qualifications of the three members of
J. C. Mallory, a member of the panel was excused by the court, over the objection of the defendants, because his physical condition was such that a minor operation in a hospital was imminent. Earl Yeager, who was called in place of Mallory, was challenged for cause by the plaintiffs on the ground that he resided near the residence of Alva Ritz Kingdon and that he might entertain some prejudice in the matter. His examination, however, showed that he knew nothing about the matters in controversy except information which he had obtained from reading newspapers and that he had no interest in and had not formed any opinion about the case. He stated that he did not think he was prejudiced but that he thought he would resolve any doubt in favor of Alva Ritz Kingdon. William E. McDougle, another member of the panel, was challenged for cause on the ground that he was acquainted with Alva Ritz Kingdon and was a stockholder and an employee of a company in which one of the attorneys for the defendants was a director. For the reasons indicated Yeager and McDougle were discharged from the panel and qualified jurors were placed upon the panel in lieu of the three members who were excluded from it by the court.
In the selection of a jury in a criminal case or a' civil action a trial court is vested with a sound discretion and its action in excusing a qualified juror and in excluding a qualified juror upon challenge for cause will not be disturbed by an appellate court unless it appears that the complaining party was prejudiced by the removal of such jurors from the panel. See State v. McCausland, 82 W. Va. 525, 96 S. E. 938; Eastham v. Holt, 43 W. Va. 599, 27 S. E. 883, 31 S. E. 259. The determination of the qualification of a juror presents a mixed question of law and fact and the findings of a trial court upon such question will not
In the Eastham case the opinion contains this language: “It is fair to say that much authority can be found giving a court, even in felon trials, power to discharge jurors. Thomp. & M. Jur. §§ 258, 259. There it is laid down that, as the selection is for the court to secure fit persons, large discretion is given, and that ‘it by no means follows that, because certain causes have been declared sufficient to justify the trial court in excusing a juror, the sufficiency of excuses in general must be considered a matter of law. On the contrary, it may be considered as the recognized rule that the discharge of a juror under these circumstances is a matter addressed to the sound discretion of the court, which will not be reviewed in the absence of evidence showing prejudice to the complaining party from the abuse of such discretion.’ 5 Am. & Eng. Enc. Law, 5.”
In the opinion in the Thompson case the material distinction between the selection of a disqualified juror and the ¿xclusion of a juror who is alleged to be disqualified is emphasized and discussed in this quotation from the opinion in Clore’s Case, 8 Gratt. 606: “When, upon the commonwealth’s challenge, one of the venire is erroneously excluded from the panel, the effect is materially different from that produced by erroneously overruling the prisoner’s challenge to a venire man. In the former case the exclusion of a particular man from the jury does not throw any obstacle in the way of impaneling an impartial jury of qualified jurors. The effect is only to set aside one alleged to be disqualified, and put in his place one that is qualified. This exclusion and substitution can in no wise affect the fairness and impartiality of the trial,
The action of the circuit court in excluding the three jurors from the panel did not constitute an abuse of its discretion and did not prejudicially affect any right of the defendants. The members of the jury selected to try the issue devisavit vel non between the parties to this suit were duly qualified and free from exception. As the jury was composed of duly qualified members and as the exclusion of the three members of the panel did not deprive the defendants of their right to a trial by a fair and impartial jury, the action of the court in excluding them from the jury will not be disturbed by this Court upon this appeal.
By their second assignment of error the defendants complain that the circuit court permitted the plaintiffs to introduce improper evidence relating to several matters and to make improper statements to the jury. With respect to the evidence so admitted the ground assigned by the defendants in their motion to set aside the verdict and grant
In Haldren v. Berryman, 109 W. Va. 403, 155 S. E. 125, this Court held in point 1 of the syllabus, that objections to evidence, unless made the subject of special bills of exceptions or specifically presented to the trial court as grounds of. a motion to set aside the verdict and grant a new trial, will not be considered on writ of error to this Court. See also Trippett v. Monongahela West Penn Public Service Company, 100 W. Va. 319, 130 S. E. 483. In State v. Henderson, 103 W. Va. 361, 137 S. E. 749, the syllabus is in these words: “As this court has often held, alleged errors in the admission or rejection of evidence are waived, if not made the ground of a motion to set aside -the verdict, or incorporated in special bill or -bills of exception showing the evidence and the ruling of the court thereon.” This syllabus was approved and applied in point 1 of the syllabus in State v. Male, 103 W. Va. 355, 137 S. E. 751, and in the opinion this Court said: “* * * the admission and rejection of evidence is waived because the same has not been made a special ground for setting aside the verdict, or incorporated in special bills of exceptions showing the evidence and the rulings of the court thereon. A general reference to errors in the introduction of evidence as a ground for setting aside the verdict will not suffice. The court’s attention must be specifically called-to the errors on such motion, or they must be carried into the record by proper bills of exception.” Under those two cases and the other above cited cases, alleged errors in the admission or the rejection of evidence, to which objection has been made in the trial court, are waived unless such evidence is specifically set forth as a ground of a motion to set aside the verdict and grant a new trial or unless it is incorporated in a special bill of exceptions .which shows the evidence and the ruling of the court in admitting*or rejecting it. The evidence now complained of not having been specified in
It is here pointed out that the holding and certain statements in the opinions of this Court in several prior cases on this point are inconsistent with its present holding as just stated and its holding in the above cited cases. See article “The Transcript of the Evidence as a Substitute for Special Bills of Exceptions” by Professor Leo Carlin, College of Law, West Virginia University, June, 1926, 32 West Virginia Law Quarterly 321. The prior cases above referred to are Hinton Milling Company v. New River Milling Company, 78 W. Va. 314, 88 S. E. 1079; Bond v. National Fire Insurance Company, 77 W. Va. 736, 88 S. E. 389; Walters v. Appalachian Power Company, 75 W. Va. 676, 84 S. E. 617; Parr v. Howell, 74 W. Va. 413, 82 S. E. 126; Wright v. Ridgely, 67 W. Va. 319, 67 S. E. 787; Fuller v. Margaret Mining Company, 64 W. Va. 437, 63 S. E. 206; McClanahan v. Caul, 63 W. Va. 418, 60 S. E. 382; Williams and Davisson Company v. Ferguson Contracting Company, 60 W. Va. 428, 55 S. E. 1011; Foley v. City of Huntington, 51 W. Va. 396, 41 S. E. 113; Bodkin v. Arnold, 48 W. Va. 108, 35 S. E. 980; Kay v. Glade Creek and Raleigh Railroad Company, 47 W. Va. 467, 35 S. E. 973; and McDodrill v. Pardee and Curtin Lumber Company, 40 W. Va. 564, 21 S. E. 878. To the extent that the holding in the cases just cited and statements in the opinions in those cases are inconsistent or in conflict with the holding in this case on this point, such holding is overruled and such statements are disapproved. This action is now taken by this Court for the purpose of making clear and certain the procedure required for the consideration by this Court of alleged errors committed by a trial court in the admission or the rejection of evidence in cases in which the parties are entitled to a trial by a jury.
The defendants contend that the circuit court erred in
The assignments of error relating to the action of the, circuit court in refusing to give Instruction No. 1, requested by the defendants, which would have directed the jury to ascertain and find that the instrument dated July 10, 1950, probated January 2, 1951, is, in its entirety and as to every part, the last will and testament of James M. Ritz, in confirming the verdicts of the jury, in refusing to set aside such verdicts and to grant a new trial, and in entering the final decree based on such verdicts, present the controlling questions whether the evidence establishes the mental capacity of James M. Ritz to make a will when he executed the instruments dated May 2, 1950, and July 10, 1950, and undue influence by the defendant Alva Ritz Kingdon in procuring their execution by him.
Upon an issue devisavit vel non, under Section 11, Article 5, Chapter 41, Code, 1931, as distinguished from an issue out of chancery, the verdict of a jury is not merely advisory but has all the characteristics of a verdict rendered in an action at law; and, if the verdict of
Upon the trial of an issue devisavit vel non in a suit to impeach a will the burden of proving the testamentary capacity of the testator at the time of the execution of the will is upon the proponent of the will. Powell v. Sayres, 134 W. Va. 653, 60 S. E. 2d 740; Payne v. Payne, 97 W. Va. 627, 125 S. E. 818; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493, 2 L. R. A. 668; Nicholas v. Kershner, 20 W. Va. 251; McMechen v. McMechen, 17 W. Va. 683. The time to be considered in determining the capacity of the testator to make a will is the time at which the will was executed. Prichard v. Prichard, 135 W. Va. 767, 65 S. E. 2d 65; Moore v. Moore, 120 W. Va. 468, 199 S. E. 257; Pickens v. Wisman, 106 W. Va. 183, 145 S. E. 177; Payne v. Payne, 97 W. Va. 627, 125 S. E. 818; Stewart v. Lyons, 54 W. Va. 665, 47 S. E. 442; Martin v. Thayer, 37 W. Va. 38, 16 S. E. 489; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493, 2 L. R. A. 668; Nicholas v. Kershner, 20 W. Va. 251; Tate v. Chumbley, 190 Va. 480, 57 S. E. 2d 151; Jenkins v. Trice, 152 Va. 411, 147 S. E. 251; Forehand v. Sawyer, 147 Va. 105, 136 S. E. 683.
Old age and eccentricity incident to it are not of themselves sufficient to establish lack of mental cápacity of a testator to make a will, Prichard v. Prichard, 135 W. Va. 767, 65 S. E. 2d 65; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493, 2 L. R. A. 668; Nicholas v. Kershner, 20 W. Va. 251; and it requires less capacity to make a will than to make a deed, Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493, 2 L. R. A. 668; Nicholas v. Kershner, 20 W. Va. 251. Mere infirmity of mind and body due to illness is not
Though the testimony shows that during the period December, 1949, when he contracted a cold, to December 17, 1950, when he entered the hospital in which he died on December 29, 1950, James M. Ritz was ill and suffering from bodily infirmities and physical ailments which varied in intensity from time to time, and though there is some conflict in the testimony of the witnesses on the question of his testamentary capacity while he was in
The evidence shows that between March 6, 1950, when he left a hospital in Moundsville, and December 17, 1950, when he finally entered a hospital in Bluefield, he transacted and engaged in the transaction of numerous important business, financial and legal matters the occurrence of which is undisputed; that those transactions could have been performed or accomplished only by a person of normal mental capacity; and that his acts and conduct in connection with all of them were intelligent, concise and effective. No witness testified that, at any time or upon any occasion during that period, he failed to recognize or remember any friends or acquaintances whom he met or with whom he associated. The unequivocal testimony of Narick, the draftsman of the instrument dated May 2, 1950, and one of the attesting witnesses, and of Sullivan, the other attesting witness, who were the only persons present with James M. Ritz when he executed it, is that at that time he was mentally competent to make a will. The physician who treated him during his illness in Moundsville also testified that he detected no impairment of his mentality and that he considered him to be a mentally normal person. The testimony of these witnesses on that point is not controverted as to the particular times and occasions to which it relates and, for that reason and because of the capacity in which each of them acted, their testimony is entitled to great weight.
That James M. Ritz was mentally competent to make a will at the time he executed the instrument dated July 10, 1950, is also clearly established by the evidence. The undisputed evidence is that he made in the ordinary and accepted manner a deposit to his account at the bank shortly before he executed that instrument, and the posi
The contention of the plaintiffs that the disposition of the property of James M. Ritz by the instrument dated July 10, 1950, is unnatural and that the instrument of that date is of. that character is not supported by the facts. Though it makes a different disposition of his property from that which Schmidt and Hinerman testified he told them he intended to make and differs from the instrument dated May 2, 1950, in that it omits any bequest to Harold Snyder, it gives his property to a sister and a brother and excludes a brother and six nieces with whom he had had no close or frequent association during his illness in the last year of his life. It does not distribute his property among strangers or give it to persons who are not among his next of kin. As his mental capacity to make a will at the time he executed the instrument dated July 10, 1950, is clearly established he had the right freely to dispose of his property in any way he wished to dispose of it regardless of the opinions of other persons who may have believed that his disposition of his property was unequal, inequitable, unjust, or unreasonable. Ebert v. Ebert, 120 W. Va. 722, 200 S. E. 831; Stewart v. Lyons,
The second ground upon which the plaintiffs assail the validity of the instruments dated May 2, 1950, and July 10, 1950, is undue influence alleged to have been exerted upon James M. Ritz by the defendant Alva Ritz Kingdon during the period of her close association with him in 1950. In a suit to impeach a will the burden of proving undue influence is upon the party who alleges the exercise of such influence. Mullens v. Lilly, 123 W. Va. 182, 13 S. E. 2d 634; Payne v. Payne, 97 W. Va. 627, 125 S. E. 818; Bade v. Feay, 63 W. Va. 166, 61 S. E. 348; Stewart v. Lyons, 54 W. Va. 665, 47 S. E. 442; McMechen v. McMechen,
Proof of opportunity for, or possibility or suspicion of, the exercise of undue influence is not alone sufficient to establish undue influence. Ebert v. Ebert, 120 W. Va. 722, 200 S. E. 831. Influence which arises from acts of kindness and attention to the testator, from attachment or love, from persuasion or entreaty, or from the mere desire to gratify the wishes of another, if free agency is not impaired, does not constitute, and is not alone sufficient to establish, undue influence. Ebert v. Ebert, 120 W. Va. 722,
The evidence upon which the plaintiffs rely to show undue influence upon the part of the defendant Alva Ritz Kingdon does not establish the exercise of undue influence by her at any time. There is no direct evidence of any conduct upon her part at any time or place which amounts to or constitutes’undue influence. The absence of proof of that nature is conceded by counsel for the plaintiffs who, however, earnestly insist that the evidence, though circumstantial, is sufficient to warrant the inference from it by the jury that the execution of each instrument by James M. Ritz was procured by the exercise of undue influence by Alva Ritz Kingdon, and that each verdict as to the issue of undue influence is amply supported by the evidence.
In support of this position they specifically mention
Careful analysis and full consideration of the evidence in its entirety, however, indicate clearly that, at most, the evidence, concerning the above enumerated facts and circumstances and other related matters, establishes merely the opportunity for, or the possibility or the suspicion of, the exercise of undue influence by her. As already pointed out, opportunity for, or possibility or suspicion of, the exercise of undue influence does not constitute or sufficiently prove ‘the exercise of undue influence. The evidence does not show that the substance of the derogatory statements in the letters written by her to the plaintiff Stuart L. Ritz in any way influenced James M. Ritz in disposing of his property as provided in either instrument or that the contents of those statements were ever communicated to him by her. The only direct evidence on that point is her testimony that she did not impart that information to him in his lifetime.
As previously indicated the attesting witnesses to each
The defendants complain of the refusal of the trial
Instruction No. 12, offered by the defendants and refused by the court, would have told the jury that a person who is incompetent or mentally diseased may not bring an action in the name of such person and that, as Jean Johnson Crouch had joined in the suit as plaintiff in her own name, it could not be contended by the plaintiffs that she is incompetent or mentally diseased. As there is no evidence that the plaintiff Jean Johnson Crouch is incompetent the instruction is not based upon the evidence as to that fact. The instruction also incorrectly propounds the law and would tend to mislead the jury. For these reasons it was properly refused.
Upon a trial by a jury of an issue devisavit vel non the court may, when proper, as in an action at law, direct or
The defendants complain of the action of the circuit court in decreeing costs in favor of the- plaintiffs and against the defendants Alva Ritz Kingdon and Charles L. Ritz instead of against Alva Ritz Kingdon in her representative capacity as executrix of James M. Ritz. As the final decree of October 16, 1952, must be reversed, the action of the court in decreeing such costs will not be discussed or considered on this appeal.
The final decree of the Circuit Court of Mercer County
Decree reversed; verdicts set aside; new trial awarded; case remanded.