124 Va. 1 | Va. | 1918
delivered the opinion of the court.
The bill in this case was filed under section 2544 of the Code by the next of kin of Frederick G. Rust, deceased, praying an issue devisavit vel non to determine whether a writing which has been admitted to probate as his will was the true last will and testament of the decedent. The will was contested on the ground (1) of the insanity of the testator at the time of its execution, (2) of undue influence exerted over him by the beneficiaries, and (3) of the insane delusion of the testator that his father and his father’s family had placed him in insane hospitals and kept him there in order to get his estate. All of these grounds were contested by the beneficiaries under the will. If any one of them was sustained, the will would be set aside. Upon these issues the parties .went to trial before a jury. At the first trial the jury were unable to agree upon a verdict and were discharged. At the second trial, the jury found in favor of the will, and a decree was entered accordingly. From that finding and decree this appeal was taken.
The point most urgently insisted upon in the oral argument was that the contestants did not have a fair trial be
H. H. Fultz.
“Q. Have you formed or expressed any decided or fixed opinion in regard to the issue?
“A. Yes, sir, I have.
“Q. Is that opinion so decided and fixed that you on your oath do not think you could go upon the jury and give a fair and impartial verdict?
“A. I wouldn’t like to say about that. I have expressed an opinion several times, but I wouldn’t like to say I couldn’t go on there and give a fair trial.
“Q. What is your opinion based on—what you have heard and read in the newspapers? ■
“A. Yes, sir.
“Q. Were you present during the last trial of this case?
“A. No, sir.
“Q. You didn’t hear any of the evidence?
“A. No, sir.
“Q. Then you could not say you could not go upon the jury and give a fair and impartial trial?
“A. No, sir.
By Mr. Elder: “He has expressed an opinion and he has already formed an opinion. We think he ought not to be accepted. It will certainly take evidence to dislodge that opinion, whatever it is. We don’t know what the opinion is. We don’t think he, from his own statement, could make a fair juryman. I know Mr. Fultz and like him, and he may take our view of this matter, but even so, he would not be a proper juryman.
*7 By the Court: “Q. As I understand you, Mr. Fultz, your state of mind now is that you could go upon the jury and listen to the evidence and base your verdict upon the evidence ?
“A. Yes, sir, I believe I could, as far as that goes.”
C. V. Shuey, being examined on his voir dire, testified as, follows:
“Q. Have you formed or expressed any fixed or decided opinion in the matter?
A. I have expressed an opinion, but don’t know whether it is decided or not, just what I know of him.
“Q. You have expressed an opinion, but don’t know that it is decided?
“A. No, sir, I don’t know that it is decided.
“Q. Do you feel, Mr. Shuey, that you could disregard that opinion entirely and go upon the jury, listen to the evidence and give a fair and impartial trial, based entirely upon the evidence ?
“A Yes, sir, I think I could.
By Mr. Fulton: “Q. Do you feel biased in favor of either one or the other in the^ case from what you know about the facts and circumstances? Have you got any personal opinion now?
“A. I expect I have rather formed an opinion on one side.
“Q. I do not ask you which side it is, but you do feel biased on one side?
“A. Yes, I believe I am.
“Q. Did you know Mr. Rust himself?
•“A. Yes.
“Q. And from the facts and information as you know them now you feel biased one way or the other?
“A. Very much so, yes.
By Mr. Fulton: “Now the statute, your Honor, reads that if he has expressed or formed any opinion or is con*8 scious of any bias or prejudice—Now he says he is conscious of a bias.
By the Court: “Q. As I understand you, Mr. Shuey, you feel that you could go upon the jury and base your verdict, not upon what you have heard in the past and not upon any opinion you have, but simply upon the evidence as you hear it from the witness stand?
“A. I think I could.
“Exception by contestants.”
R. W. Johnson:
“Q. Have you formed or expressed any opinion in the matter?
“A. I have.
“Q. Is that opinion of such a nature and so fixed in your mind that you could not lay it aside and go upon the jury and listen to the evidence and give a verdict based entirely upon the evidence?
“A. Well, I haven’t read of it and don’t know that I could tell.
“Q. I simply want to know whether you feel you could lay aside your opinion as formed?
“A. Yes, I could lay it aside.
“Q. And base your verdict entirely upon the evidence as produced ?
“A. Yes.
By Mr. Fulton: “Q. You say, Mr. Johnson, that you knew Mr. Rust?
“A. I knew Mr. Rust, yes.
“Q. You heard this matter discussed?
“A. I have heard it discussed outside.
“Q. I mean outside. This particular case to be tried you have heard discussed and from the information you have you feel you are sensitive of a bias in favor of one*9 side or the other—you needn’t tell me which side, but you feel you have an opinion one way or the other about this matter ?
“A. Well, I hardly know. I haven’t taken enough interest in it to hardly say. That is, I have heard it discussed and discussed it off and on with people myself.
“Q. Have you ever expressed an opinion one way or the other about it?
“A. Well, yes, I have expressed an opinion.
“Q. Now I understood you to tell the court—I may have misunderstood you—that you said you did have rather a decided and fixed opinion. I may be in error, if I am I would be g’lad to be corrected.
“A. I don’t know. All I can say is that I could hear the evidence all the way through and possibly change my mind.
“Q. It might possibly change your mind from what It is now?
“A. Yes.
“Q. You are then sensitive of a bias in favor of one side or the other at this time when you go in the box?
“A. In a way, yes.
“Q. And that is based upon the personal knowledge you have of Rust and also what you have heard?
“A. Yes.
“Q. About this case?
“A. Yes.
“Accepted.
“Exception by contestants.”
A. Y. Pifferling.
“Q. The case to be tried is the contest over the will of the late Frederick G. Rust. Do you know anything about the matter?
“A. I attended part of the other trial.
*10 “Q. You heard part of the other trial?
“A. Yes.
“Q. Have you formed or expressed any decided or fixed opinion in regard to the issue?
“A. I don’t know, sir.
“Q. Do you think that you could go upon the jury and give a fair and impartial verdict based upon the evidence?
“A. Yes, sir.
' By Mr. Elder: “Q. Mr. Piffling, you say you have not formed or expressed an opinion about this matter?
“A. I might have talked about it, but I don’t think I have.
• “Q. You have talked about it in the barber show, haven’t you?
• “A. Yes.
“Q. I saw you out walking Sunday evening with Mr. Kivlighan and Mr. Wehn. Did you talk about the case Sunday evening?-
“A. One of them said, T wonder who the new jury will be,’ and I said I was one of them.
“Q. Did they say they had been jurymen before?
“A. They laughed and said something about it—didn’t argue the case or nothing.
“A. Did they express an opinion about the matter?
“A. No, sir.
“Q. Did you express an opinion about the matter?
“A. No, sir.
“Q. You never expressed any opinion?
“A. Only Kivlighan said when meeting Mr. Elder on the street that he (Elder) will say ‘We fixed you.’ That is all that was said.
“Q. So you were talking about the matter?
“A. Yes.
*11 “Q. Are you sensible of any bias in this matter either for the contestants or the contestees?
“A. No, sir.
“Exception by contestants.”
Arthur H. Agner, being examined on his voir dire, testified as follows:
“Q. The case to be heard is the contest of the will of the late Frederick G. Rust. Do you know anything about the matter?
“A. No, sir, no more than I read and heard of it.
“Q. Have you formed or expressed any decided or fixed opinion about it?
“A. Yes, sir.
“Q.- Is that opinion so fixed and decided, Mr. Agner, that you feel you cannot lay it aside and go upon the jury and listen to the evidence and base your verdict upon it?
“A. No, sir.
“Q. You mean you can or cannot do that?
“A. I can. It is not so fixed I could not.
“Q. It is not fixed so you could not?
“A. No, sir.
“Q. You feel you could go upon the jury, listen to the evidence and base your verdict entirely upon the evidence offered?
“A. Yes, sir.
By Mr. Fulton: “Q. You have an opinion now?
“A. Well, I haven’t—I had at the time of the other trial, yes.
“Q. Have you still that opinion?
.“A. Yes, still that opinion.
“Q. You are at this time sensible of a bias in favor of one side or against the other?
“A. Yes, sir.
*12 By Mr. Timberlake: “Q. You mean to the extent of your opinion as already formed?
"A. Yes, sir.
“Q. But no bias against the parties on either side?
“A. No, sir.
By Mr. Fulton: “Q. It would require evidence to remove that opinion, woudn’t it?
“A. Yes, sir. Of course, whether hearing the evidence would make any difference—the evidence'might change me considerably. I only heard what was in the paper and discussed among the people.
“Q. Did you know Mr. Rust?
“A. Yes, sir.
“Q. Did you ever have any business dealings with him?
“A. Yes, small matters, not of great importance.
“Q. To what extent? How many times?
“A. Oh, well, a real business matter only once. That was in regard to renting some property from him.
“Q. Were you a tenant of his?
“A. Yes, sir. 0
“Q. So it would require evidence to remove your present opinion?
“A. Yes, sir.
“Exception by contestants.”
A. P. Bickle.
“Q. Have you formed or expressed any decided or fixed opinion in regard to the matter?
“A. No, sir.
“Q. Do you know of any reason why you could not give a fair and impartial verdict?
“A. No, sir.
By Mr. Fulton: “Q. Are you sensible of any bias or prejudice, either one way or the other, Mr. Bickle?
“A. No, sir.
*13 “Q. Did you know Fred Rust or have any business transactions with him?
“A. I am a merchant and I had transactions with him in' the store, selling him goods?
“Q. How long ago ?
“A. Some time .ago. Once or twice a yeár he would drop in my store.
“Q. Have you any opinion about the matter at issue?
“A. No, sir, I haven’t.
“Accepted.
“Exception by contestants.”
S. A. Day.
“Q. Have you formed or expressed any opinion in regard to the issue?
“A. Well, Judge, I must say I have.
“Q. You need not tell me what your opinion is, but upon what is your opinion based, Mr. Day?
“A. Well, nothing more than just ordinary talk, nothing to base it on definitely. I haven’t formed any opinion that could not be changed, but I have expressed^ it from just the little I heard, just current rumors.
“Q. Is that opinion such, Mr. Bay, that you feel you could lay it aside and give a verdict based entirely and only on the evidence you heard?
“A. Why, certainly so.
By Mr. Elder: “Q. Did Mr. Rust come to your place right often in his life?
“A. A good deal, yes.
“Q. He used to play a game down there—what do you call it?—pinochle?
“A. I really don’t know what the game was.
“Q. You knew him very well in a business way?
“A. Yes, sir.
*14 “Q. And you have formed an opinion about this matter?
“A. Well, I am frank to say I have.
By Mr. Fulton: “Q. Are you now sensible of any bias or prejudice one way or the other? In other words, if you were asked now would you express an opinion on what you know?
“A. No, sir; understand me to say—
“Q. I am not asking you to tell which way you would express an opinion, but you have an opinion now one way or the other? In other words, have you a bias one way or the other?
“A. I have no bias one way or the other.
S‘Q. I don’t mean a bias against anybody, but are you sensible of an opinion or conviction one way or the other at this time that would take evidence to change it?
“A. Yes, sir.
“Q. It would take evidence to change your opinion from what it Is now.
“A. It certainly would.
“Q. How long have you entertained that opinion?
S5A. Well, I would say ever since the matter was discussed about the contest of the will; just like anybody else 'would speak of those matters.
“Q. You talked with people about it?
“A. Yes, sir.
"Q. You expressed your opinion to those people?
“A. Yes, sir.
!iQ. They expressed their opinions to you?
“A. Yes, sir.
"Q. And you have had an opinion, you say, ever since this matter first came up about the contest of the will. Could you state approximately about what time that was— a year, two years, or six months?
*15 “A. No, it hasn’t been that long.
“Q. Has it been six months?
“A. I could not state definitely, sir.
“Q. Approximately. I am just trying to find out.
“A. I am perfectly frank to state 1 could npt say accurately.
“Q. But ever since this matter first began?
“A. It was discussed all around.
“Q. Is it a matter of general discussion here in Staunton?
“A. Yes, sir.
“Q. This contest has been a matter of very great discussion ?
“A. Naturally so.
“Q. And you have discussed it frequently?
“A. Yes, sir.
“Q. And it has been discussed frequently in your presence?
“A. Yes, sir.'
By the Court: ' “I understand you to say, however, that you could go upon the jury and discard any preconceived opinion that you have and base your verdict solely on the evidence?
“A. I certainly could.”
After nine jurors had been obtained, counsel struck from the list the names of R. W. Johnson and Arthur H. Agner, leaving the remaining seven to compose the trial jury.
Section 3154 of the Code, under which these proceedings were taken is as follows: “The court shall, on motion of either party in any suit, examine on oath any person who is called as a juror therein to ascertain whether he is related to either party; or has any interest in the cause or has expressed or formed any opinion or is sensible of any bia®. or prejudice therein; and the party objecting to any
The question for consideration is, did any one or more of this panel “not stand indifferent in the cause?”
The testator was sixty-five years of age at the time of making his will and at the time of his death. He had been placed in a hospital for the insane at the age of eighteen years and had been kept in such hospitals for about thirty years almost continuously. He ha.d been discharged, however, as restored in 1899, and from that time until his death in 1917, had resided in or near the city of Staunton. He was a familiar figure on the streets of that city. He was very eccentric. He was unkempt in appearance, and generally carried a sack or bag over his shoulder which contained such articles as he chose to place therein. By his will, he gave his entire estate, estimated as worth from thirty-five to fifty thousand dollars, to strangers to his blood. There had been a trial of the case, resulting in a hung jury, about three months before the case was called for the second trial. It was under these circumstances that the jurors aforesaid were called to sit on the second trial.
“The cases upon this subject are almost without number, and they are not to be reconciled. The trend of recent decisions is in the direction of limiting, rather than extending', the disqualification of jurors by reason of mere opinion. Whatever the mind receives has an effect upon it, passing with almost infinite gradation from a mere impression to a fixed belief. The State strains- every nerve to disseminate knowledge. By the diffusion of education it hopes to create a higher citizenship and to find the means of repressing vice and crime; but if the courts take an extreme position on this subject, and hold that every opinion shall work a disqualification for service as a juror, the administration of justice will be confided, not to the most intelligent, but to the most ignorant of our citizens. The courts,, therefore, while resolute in seeing that every ma.ti shall be tried by an impartial jury, inquire into the quality and degree of opinion, and to that end search the conscience of the juror upon his voir dire, and look into the sources of the information upon which his opinion rests.”
“Q. Bo you feel biased in favor of either one or the other in the case from what you know about the facts and circumstances? Have you got any personal opinion now?
“A. I expect I have rather formed an opinion on one side.
*20 “Q. I do not ask you which side it is, but you do feel • biased on one side?
“A. Yes, I believe I am.
“Q. Did you know Mr. Rust himself?
“A. Yes.
“Q. And from the facts and information as you know them now you feel biased one way or the other?
“A. Very much so, yes
To the same effect is the testimony of R. W. Johnson, another juror, but who was stricken from the panel. The testimony of Agner, another juror, who was stricken from the panel, will not be considered, for reasons hereinafter set forth. Another juror, Day, was not a mere acquaintance of the deceased, but seems to have been intimate with him. Deceased was at his place “a good deal” and he “knew him very well in ¡a business way.” This juror was “frank to say” that he had “formed an opinion about this matter” and was “sensible of an opinion or a conviction one way or the other at this time that would take evidence to change.” The subject of the contest had been a matter of general discussion in the city, and he had frequently discussed it himself, and had also heard others discuss it. It is true that he, like other jurors, declared that he could discard his preconceived opinion and base his verdict solely on the evidence in the cause, but, as said, in a different connection, by Staples, J., in Wright’s Case, 32 Gratt. (73 Va.) 941, 944, “such a man may persuade himself that he is impartial, but the law does not so regard him. Unconsciously to himself, it may be, his prejudices may follow him into the jury box, and influence and control his judgment there.” It is not easy to see how jurors who had been intimately acquainted with the deceased for years, and some of whom had had dealings with him, could disabuse their minds of opinions as to the men
As said in Hardin v. State, 66 Ark. 53, 48 S. W. 904, “When it is apparent that the juror has formed an opinion from his own knowledge of the facts of a case, or that from his connection with the prosecution or defense, he is not an impartial juror, his statement that he can give the defendant a fair and impartial trial will not remove the objection to his incompetency, for it is possible that the most prejudiced man might be willing to say, and even believe,, that he would be 'an impartial juror.”
Indeed, the position of the appellants, both in the trial court and in this court, was and is that no impartial jury, regular or special, could be obtained in the city of Staunton. The action of the trial court on such a motion will not be reversed unless it is made to appear that its discretion has been improperly exercised. Southern Ry. Co. v. Oliver, 102 Va. 710, 47 S. E. 862; Lemons v. Harris, 115 Va. 809, 80 S. E. 740.
It is also assigned as error that the trial court refused to quash the venire facias on the grounds that the jury were not selected, drawn and impanelled as required by the statute. As the case has to be reversed on other grounds and the alleged error is not likely to occur on another trial, it is not necessary to consider this assignment of error.
The burden of proving testamentary capacity is on the propounder of the will and continues upon him throughout any contest on that question, but when he has shown a compliance with all the statutory requirements for the due execution of a will, the legal presumption of sanity comes to his relief and dispenses with any evidence to the contrary. The proof of due execution therefore entitles the propounder prima facie to have the will admitted to probate. Burton v. Scott, 3 Rand. (24 Va.) 399; Wallen v. Wallen, 107 Va. 131, 57 S. E. 596; Hopkins v. Wampler, 108 Va. 705, 62 S. E. 926, and cases cited; Kerr v. Lunsford, 31 W. Va. 659, 8 S. E. 493, 2 L. R. A. 668. There was no error, therefore, in permitting the propounders of the will to rest their case upon proof of the due execution of the will. They had the option to introduce their evidence as to the testator's sanity in chief, or in rebuttal. Furthermore, no injury is shown to have been sustained by the appellants by reason of the order in which the evidence was introduced. The order of introduction of evidence lies largely in the discretion of the trial court, and its ruling will not be reviewed where no prejudice or injury to the party objecting is shown. Ches. & O. Ry. Co. v. Chapman, 115 Va. 32, 78 S. E. 631.
The objection to this instruction is that the latter part of it is in conflict with the first part. The first part told the jury that the burden of proof was upon those offering the will to show testamentary capacity, while the latter part told the jury that there is in all cases an existing presumption in favor of the testator’s sanity and capacity. We have already pointed out, in another connection, the rule applicable, to the presumption of sanity and do not deem it necessary to say more in this connection than that the jury could not have been misled in applying the instruction to the facts of this case.
The objection to this instruction is that it “was erroneous in that it commented upon the weight of the testimony of the attesting witnesses to the will and told the jury ‘that their evidence was entitled to peculiar weight upon the question of testamentary capacity.’ ” The instruction follows well established precedent and is in the exact language of instruction “P,” approved by this court in Huff v. Welch, 115 Va. 74, 78 S. E. 573. We do not think there is anything in the evidence in the case in judgment winch takes it out of the operation oj the general rule.
As the -case has to be remanded for a new trial for the reasons hereinbefore stated, it would be improper for this court to consider the ruling of the trial court on the motion of appellants to set aside the verdict because contrary to the evidence as the evidence may be different on another trial.
• For the reasons hereinbefore stated,, the verdict of the jury on the issue devismit vel non will be set aside, and the decree of the Corporation Court of the city of Staunton, based thereon, will be reversed, and the cause remanded' to said corporation court for a new trial of said issue.
Reversed.