144 Va. 406 | Va. | 1926
delivered the opinion of the court.
This is a controversy between Smith and Murden, executors named in the alleged will of Captain Frederick M. Holstead and thirty-two persons claiming to be the heirs at law and distributees of the deceased.
Captain Holstead, a citizen of Norfolk county, Virginia, was in his youth an officer in the Confederate army. He was a life-long resident of the community in which he died, and made his home from infancy on the ancestral estate known as “Cedar Grove.” On the-15th day of April, 1918, he executed the paper involved in this litigation, and departed this life on October 8, 1924, at the age of eighty-one years. The death certificate, signed by Doctor Smith, one of the executors, states the cause of death: “Cerebral hemorrhage (duration) 6 ds. Contributory (secondary) arteria sclerosis and previous cerebral hemorrhage (duration) about six years.”
On the 21st day of October, 1924, the purported will was, upon motion of the plaintiffs in error, admitted to-probate by the clerk of the circuit court. From this action of the clerk an appeal was taken by the defend
The will was written by Norman Cassell, an attorney, and witnessed by Cassell and Frank L. Crocker, also an attorney. Due to the length of the paper, it will not be set forth in full. The pertinent clauses of the paper, after providing for the burial of his body and the payment of any debts, are:
1st. That the executors shall set apart and dedicate as a cemetery a certain portion of ground, which shall be used as a place of interment for the remains of himself, his father, mother, uncle and aunt.
2nd. To Alice J. Jenkins is devised the dwelling house and furniture therein, together with six acres of land immediately surrounding the same, together with all outbuildings belonging thereto.
3rd. The executors are directed to lay out into lots, thirty feet by one hundred and five feet, the entire real estate of deceased, and sell same within a period of ten years, to white persons only, the whole of the survey to be forever known and called “Holstead City.” The streets and avenues of this city were to be named for the deceased and certain deceased relatives.
4th. A direction to the executors to expend the sum of $2,500 in the erection of a monument, at Camden court house, in the State of North Carolina, to the memory of the members of Company B, Sixty-eighth North Carolina Reg., C. S. A., commanded by Captain Holstead.
5th. The sum of $2,500 was to be invested and the income derived therefrom was to be used in taking care of the family burial grounds.
“The design for said monument shall be made by a competent architect or builder selected by my executors, or their successor, or successors, and the work shall be done to their satisfaction, according to such plans and specifications as they may approve, and a bond with good security shall be required by them of the builder for the faithful execution and completion of the work. Bids for the construction of the monument shall be advertised to be received by them or their successor or successors, and the best bid for the-
“The monument now standing in the family burial •ground over the remains of my uncle Matt B. Holstead, and aunt, Camilla Old Holstead, shall be removed by my executors, at the expense of my estate, to the plot of land on which The Holstead Monument is to be located, and are to be re-erected and to be attached to and made a part of The Holstead Monument. The said plot of ground shall be enclosed by a substantial ornamental concrete wall six feet high, encompassing the entire plot.”
The sole ground upon which contestants rely to defeat the provisions of the paper writing is one of fact, namely, that Captain Holstead was mentally incompetent to make a will at the time the alleged will was executed. The efforts of the contestants were directed to showing that Captain Holstead was suffering from senile dementia.
In Rood on Wills, pp. 65, 66, we find this disease •defined thus: “Dementia exists where a mind once .sound has become weakened or decayed. Weakness of mind in consequence of old age is termed senile dementia. Like idiocy, dementia presents a question difficult to •determine, not because the type is hard to recognize, but because it is hard in close eases to determine on which side of the line the case lies. In dementia we find a new difficulty in the ever increasing weakness. 'Tihe loss is usually a gradual process, sense fading from the mind like the twilight of evening, till all is dark.”
There is no dispute as to the law governing the action this court should take as to sustaining the verdict rendered, provided there is sufficient evidence in the case to warrant such holding. Palmer v. Showalter,
The record is a voluminous one, containing over six hundred printed pages, and setting forth in full the testimony of sixty-nine witnesses; therefore, we will not attempt to analyze the evidence offered by the plaintiffs in error. The evidence offered to sustain the charge of mental incapacity is that of both expert and nonexpert witnesses.
The alleged will was executed when Captain Holstead was seventy-five years of age. This fact of itself is not significant. Some of the most active and virile minds are possessed by men who have attained, the age of seventy-five years and more. There is no presumption either of law or fact against mental capacity by reason of age alone.
In Wooddy v. Taylor, 114 Va. 737, 77 S. E. 498, Judge Harrison said: “As to the charge of mental incapacity; it is said in Robertson’s Old Practice, Vol. 3, p. 337, that ‘the presumption of competency is not destroyed, by any extremity of age. Browne v. Molliston, 3 Whart. 137. Nor is incompetency established by proving that the mind has been impaired by disease. Tompkins v. Tompkins, 1 Bailey (S. C.) 92, 19 Am. Dec. 656. It is not necessary that the testator, at the time of making his will, should retain all the force of intellect which he may have had at a former period. If he be still possessed of mind sufficient to comprehend and advise as to the ordinary transactions of his life and to give directions how his business shall be conducted and his estate managed, he may be considered competent to make a will disposing of his estate. Kennedy, J., in Kachline v. Clark, 4 Whart. [Pa.] 320; Temple, etc. v. Taylor, 1 Hen. & Munf. [11 Va.] 476. Those who would impeach the will on the ground that.
It, however, appears from the record that the testator (as he will hereafter be called) had lived on his farm in Norfolk county, with Miss Jenkins, his housekeeper, for years, in comparative seclusion; that he kept about forty ferocious dogs, some of them so fierce that they had to be fed by pushing their food to them with sticks; that he had numerous firearms and-stated to one witness: “In that little room on the back I have got an arsenal with over a thousand rounds of ammunition and a dozen rifles;” that in the year 1905 testator had an eye shot out'; that in 1914 he was severely clubbed over the head by a negro; that, prior to the execution of the will, he stated that he had a“stroke,” meaning that he had 'a cerebral hemorrhage; that again in 1920 he had another hemorrhage, also in 1922 and 1924; that in 1917 he was visited by Captain L. W. Lambert, a produce dealer, living in Norfolk, who “testified as follows:
“Q. After that time did you go back to Captain Holstead’s home?
“A. In 1917 he dug some potatoes, and Mrs. Wilson said to go up there ‘and you might get them.’ I said: ‘I don’t want to have anything to do with Mr. Holstead. He has told me he would shoot me on his farm,’ but those potatoes were shipped to me and I sent Mr. Holstead his check and account of sales.
“Q. You handled them as produce merchant?
“A.- Yes, sir.
“Q. To whom did you ship those potatoes?
“A. Smith and Holder. * * *
“Q. When, if at all, did you see anything or hear anything more about that transaction, Capt. Lambert?
“A. About six months and two days they sent word*413 -for me to come to Mr. Holstead’s, that he had my note and I told him he didn’t have it.
“Q. Did you go to his place?
“A. I. went down to his place.
“Q. Tell what happened, the whole thing, at that time.
“A. I went up to his place and there was a lady there then that had on gum boots and overalls, a red sweater and a slouch hat, and I asked her could I see Mr. 'Holstead, and she went to the house and came out •and he came out and I told him: ‘This is Captain Lambert, I want to know something about the note.’ I said: ‘You haven’t got any note of mine,’ and he said: ‘Are you going to pay interest on it?’ and I said: ‘No, I am not going to pay any interest on it,’ ‘Am not going to pay the note.’ He said: T have got one for J. P. Lambert. He owes me one for $500.00 and I want interest on it.’ I said: T don’t know what you have got of him, but you haven’t got one of mine.’ I said: ‘If you will let me see it and anybody has forged my name to it I will attend to it.’ He said: T will give this to Mr. Broudy, Lawyer Broudy.’ I didn’t know who the gentleman was; I said: ‘Well, it will be .all right,’ and I said: ‘If you will let me see it I will .see if I can straighten you out,’ and he took it out and it was Smith & Holdern’s check for those sixty-•three barrels of potatoes. I said: ‘That is a cheek that is good in any bank,’ and he held this other one out and I said: ‘That is Joe Lambert’s and that is :good.’
“Q. He said Joe Lambert’s cheek was a note?
“A. Yes, sir; and he wanted him to come and take it up or pay interest on it, and he reached his hand up and said: T will attend to it,’ and he said: T will turn .loose my regiment.’
*414 “Q. Was this in Captain Holstead’s presence?”
To which this witness answered:
“Yes, sir; he went to the house and went in and come out and had his gun, and he set his gun alongside of the steps, and I thought to myself, here will be trouble, but he left it there, and he ripped a stick off the gate about that wide, and I thought all the dogs in the world had come out; and he had them from a little poodle dog up as big as a calf; and the gate post-was about eight feet tall, and I thought that was the-best thing for me to go up, and this woman drove the dogs away and I got in my machine, and I went off and that is the last I had anything to do with Captain Holstead.
“Q. On that occasion when you saw him and his; conduct, and from what you observed at that time,, would you consider Captain Holstead a man of balanced and sound mind, or otherwise?
“A. I thought at that time that he was the craziest man I ever saw.”
It further appears that this occurrence took place on December 29 or 30, 1917, three months before the execution of the will; that also, in the year 1917, he was. visited by Rev. O. D. Poythress, who testified that, testator “would not connect up his chain of thought,” and that he was not in a mental condition at that time to transact any business; that C. A. Rhodes, a witness, testified that in 1915 testator would get up in the middle of the night and fire off guns for no apparent reason; that he was unable to remember recent matters, but could remember about the Civil War; that Mrs. Rhodes testified that “Mr. Holstead didn’t seem to be, mentally, in 1915, what he was-when I knew him before, * * * He didn’t seem, to remember any recent dates. For instance, if any
C. S. Cutherell testified that, in 1915 or 1916, he met testator, who, speaking seriously, “said he wanted to know if there were any Yankees pillaging on his place;” K. P. Butt, one of the heirs, testified that his grandmother, Mary Old Butt, was a sister of Holstead’s mother, and also a sister of Matthew Holstead’s wife, Camilla; that ever since he could remember witness had known Holstead; that his father visited Holstead, and his father and Holstead called each other “cousin”; that in 1906, as a young man, witness had lived in Holstead’s house ten days and slept in the same bed with Holstead; that Holstead gave him a running horse and gave him a pony; and used to give him different things. Witness said that in 1920 Holstead sent for him and he went to Holstead’s house and Holstead asked him: “How is Cousin Melissa?” He told him she had been dead fifteen years. And then he asked him how was his father, and he told him his father had been dead eight years.
“Q. All right; go ahead.
“A. And then he started and talked about different things, and all at once he told me, he says: ‘You are cutting timber on my land.’ And I told him: ‘No,
“Q. When he threw this object at Miss Jenkins,, what was her attitude? Did. she seem a little bit flustrated?
“A. Yes, sir; but I think she was used to it.”
Numerous other lay witnesses testified as to the mental incapacity of the testator to make a will.
It also appears from the record that .though Miss Alice Jenkins was a party defendant, was summoned as a witness, and was present during the trial of the case, she was never called to testify. This fact is most significant. No doubt the jury — as they had the right to do — drew the inference that the testimony of the daily companion of the testator, for many years, had she testified, would have been against the contention of the plaintiffs in error.
It is also significant that the attorney who had attended to testator’s legal matters for years, though present in court, and of counsel for plaintiffs, was not called as a witness on the question of testator’s mental capacity.
Dr. F. H. Redwood, a witness for the defendants
“Q. Doctor, suppose the man we are talking about was in a sanitarium for two weeks in December, 1919, where his trouble was diagnosed as arterio sclerosis. He was suffering • with his head and stated he had vertigo. His blood .pressure was 190. He had a cerebral hemorrhage in April, 1920. He had another cerebral hemorrhage in June, 1922. In August, 1922, he was seen by Dr. Strickland and found to be suffering from senile dementia. He died of another cerebral hemorrhage in October, 1924, at the age of eighty-one and this man made his will, a copy of which you said you read, on April 15, 1918. Can you give us your professional and expert opinion as to whether that man was of sound mind when he made that will on April 15, 1918?”
His answer was?
“A. Considering those facts, in my opinion, in all probability he was not of sound mind; considering the facts which you have read to me.”
Dr. Harry Bybee testified that testator had been a patient in his chiropractic hospital in the year 1919. In answer to the question: “What history did he give you in that connection?” He stated: “At the time he called at the office he told me he wanted to go into the sanatorium for a while and said that he was .suffering with vertigo and that he was having spells of blankness, that he would lose his memory.”
The witness further testified: “I did not examine him at that time, but he came into the sanatorium the first of December, 1919. On examining him at that time his blood pressure was 190, and I, of course, suspected that from the history that he gave me and my diagnosis I felt I was absolutely correct in so far
“Q. What was his general mental condition at the time he was at your sanatorium, Doctor?
“A. There was no question in my mind but that his brain was diseased, due to the arterio sclerosis. He was very peculiar and he would know me one time and another time he would come in and would not know me. I would meet hixn outside on the sidewalk, in the yard, and he would not know me. And he had a general confusion that a man would have suffering from arterio sclerosis. The brain was confused and the blank spells he was having, as he complained of, was due to the high blood pressure, and he was bordering, I think, on another stroke.
“Q. Would you say at that time he was a man of sound mind or insane mind?
“A. Certainly he did not have a sound mind. My opinion was his brain was diseased at that time, that was the time he came into the sanatorium.”
Dr. J. A. Strickland, a specialist, who conducts a sanatorium for the treatment of nervous and mental diseases, testified that at the instance of Dr. Smith, he went to the home of the testator in August, 1922, for the purpose of observing his mental status. Upon arrival, he was shown “a hole shot through the side of the house with a shot gun, the whole load went
Dr. L. C. Ferebee stated he had known testator many years; that in 1917 he went to see him with reference to a farm, but after talking to him for some time he decided that the mental condition of testator was such that he was incapable of making a valid deed.
Defendants also introduced evidence which tended to show that the creation of “Holstead City” was impracticable; that the lands of testator were located near negro settlements and were not suited for residential purposes.
The plaintiff in error introduced numerous witnesses who testified that, in their opinion, testator was perfectly capable of making a will in 1918. Among the witnesses who thus testified were Mr. Cassell and Mr. Crocker, one of whom wrote and both of whom witnessed the alleged will.
If is contended with unusual force that “the testimony of witnesses who were present at the time the will was made is more to be relied upon than the opinions of other witnesses who were not so present.” While it is true that such evidence is entitled to great weight, it is also true that it is not conclusive.
The case has been fairly submitted to a jury; a verdict has been rendered upon legal and ample evidence to support it. The great consideration to be given to the verdict of a jury, when the same has been approved by the trial court, is so deeply rooted in our jurisprudence that only a legislative enactment can uproot it.
We are of opinion, from what has been said, that the judgment of the trial court should be affirmed.
Affirmed.