54 W. Va. 665 | W. Va. | 1903
A writing was admitted to probate by the clerk of the county court of Wetzel comity as the will of Mary A. Brookover. When this probate came up for confirmation before the county court, Aaron Lyons and others contested such confirmation and denied the validity of the will, and upon trial of the contest the court held the paper not to be such will,, and refused to confirm the probate made by the clerk. An appeal was taken by Houston Stewart, the sole devisee and legatee under the will, of the circuit court, and after two trials without decision by reason of hung juries a third trial was had before a jury, and the proponent demurred to the evidence of the contestants, and the court having compelled the contestants over their objection to join in the demurrer, gave judgment that the writing was the will of Mary A. Brookover, from which judgment the contestants have sued out a writ of error from this Court.
The first question presented for decision is based on the compulsion of the contestants to join in the demurrer to evidence. It is argued that he who bears the burden of proof cannot compel his adversary to join in demurrer to evidence, and that as the proponent of a will carries the burden of proof, there is error in the ruling of the court compelling the contestants to .unite in the demurrer. In West Virginia, the rule is not that a party on whom rests the burden cannot demur. Either party may demur to the evidence, unless the case be very clearly against the demurrant, or the court itself has reasonable doubt as to what facts should reasonably be inferred from the evidence. Hollandsworth v. Stone, 47 W. Va. 773; Bowman v. Dewing, 50 Id. 445. The evidence on both sides must be incorporated in the demurrer. Then comes the question of the principle of the consideration of that evidence, and here the rule is properly put in the opinion by Judge Dent in the latter case, that all the evidence on both sides must be considered as if there were a motion to set aside a Verdict for the demurree, and that is, discard all evidence of the demurrant conflicting with that of the demurree, or the credit of which is' impeached, and all inferences which do not fairly arise from his own evidence, and as admitting all that may be fairly and reasonably inferred from the evidence of the demurree. Shaver v. Edgell, 48 W.
Therefore, there is no error in enforcing a joinder in the demurrer.
The next question is the sanity of the testatrix. Mary Lyons was born a poor country girl, witl out apportunitics for education, culture or refinement. “Chill penury repressed the living rage and froze the genial current of the soul.” She worked as a domestic, as a menial, from childhood. When up in years somewhat, after hard years, she accepted the offer of marriage with an aged man, Jennings, who owned a home in the town of New Martinsville, so that she might have a home, or perhaps under promise that it would be given to her at her husband’s death, as it was. She was compelled to and did support her aged husband and herself at the washtub of the families of New Martinsville. After her husband’s death she continued at the washtub or in the kitchens of other people. Soane years later she married a very respectable man, Brookover, prominent in his county, who was twice its sheriff, and once a justice, and who owned a home in New Martinsville and some land irear it, a few acres, which he devised to- her. Thus she was owner of considerable property, not of great value when she so acquired it, but which later came to be of considerable worth, but not a large estate. She was a dutiful, kindly wife to both husbands. She had only one child, which died when a few weeks old. She had brothers and sisters, the contestants of her will. Her aged mother lived with Mrs. Brookover, and while there secured a pension. The brothers and sisters claimed part of it from the mother, and Mrs. Brookover, proposing to take care of her, denied them their right, and a bitter quarrel arose between her and her brothers and sisters about it, and they became perfectly estranged, not exchanging visits, and Mrs. Brookover forbade them entry to her house. She blamed one brother also for furnishing her mother tobacco. The feeling between them for years before her death was intense, as is admitted mi both sides. Mrs. Brookover was warm and kindly to friends, but intensely resentful and bitter towards enemies, or those whom she regarded as such. We can say that if, for real or fancied cause, she- took up a dislike or prejudice against a person, she never
A physician, Curtis, who treated her only once gave the opinion that she was insane, and thought she would be liable to delusion, but did not know that she had delusion. Iiis acquaintance with her was limited, he said. A witness, Hall, said she had no discriminating judgment. His chief reason was that she brought suit to sell her own property devised by her husband. There were debts against his estate, some admitted by her, some denied, and she brought suit to fix debts and sell some of her husband’s realty therefor, and Hall, a lawyer, purchased under the decree, a surplus being left from that part sold, which surplus went to her. He said when she would consult any one about a "matter she used the standing expression, “you wouldn’t do it, would you ?” He did not think she was able to transact business. But he says he contracted with her for the property at $3,000. Pie told about her going to his house to see the dog and bring it candy and other things to eat. Col. McEldowney saj's she was a woman of inferior mind and could be influenced for good ■or evil. Dr. Underwood said she was “irrational”, and “had no capacity to tranasact business. Her mind at times was unsound.” She would generaly call her husband “old man”, some times “old devil”. I infer it was jocose conversation. It does not appear that it was in anger. I have given the bulk and sub
Some time after her last husband’s death Houston Stewart met with Mrs. Brookover and formed an attachment to her, visited her a number of times; and wrote her many love letters, breathing great love, devotion and tenderness for her. We have no letters of hers in reply, but her letters from him were found in her possession, some found by Hattie Debolt and given by her to an attorney against the will, and others found in her house by one of the appraisers and given to the same attorney. Considering the great number of his letters and the considerable period of time covered by them, and his visitation to her, we are warranted in saying that she reciprocated his affection. Her will says: “The reason I make this kind-of disposition of my property is because the devisee, Huston Stewart, has favored me and accommodated me when my relatives did not, and refused to do so.”
We hold that the evidence is not sufficient to overthrow this will. Courts must be cautions how they deny to the owners of property the full right of disopsition. The law gives to the owner absolute dominion over it, and full, indeed arbitrary, pow
“Ho farther seek his merits to disclose, Or draAv his frailties from their dread abode, (There they alike in trembling hope repose) The bosom of his father and his God.”
Was Mary Brookover competent in mind to make that will? This is the sole, single question, and all criticism upon testatrix and devisee and their relations, all argument based on the disinheritance of her kindred, are unavailing and abortive in law. So arc all arguments of evidence going only to show mere peculiarity or eccentricity of character, disposition or habits of the testatrix, if they do not overthrow her testamentary capacity. Who has not peculiarity, personal weakness ? How many of us guilty of profanity, rudeness, coarseness, unjustifiable hot blood at times ? This woman saw a hard life from childhood up. She was always a “poor o’erlaborecL wight,” against whom fair fortune turned it§ face, and little wonder that she^ like many
“It is not necessary that a person should possess the highest quality of mind in order to make a will, nor that he should have the same strength of mind, which he may formerly have had; the mind may be in some degree debilitated, the-memory may be enfeebled, the understanding, may be weak, the character may be eccentric, and he may even want capacity to transact many of the ordinary business affairs of life; but it is sufficient if he understands the nature of the business in which he is engaged, has a recollection of the property which he means to dispose of, the objects of his bounty and the manner in which he wishes to distribute it among them. Where legal capacity is shown, and the testator acts freely, the validity of the will cannot bo impeached, however unreasonable, imprudent or un-acountable it may seem to the jury or to others.” Nichols v. Kershner, 20 W. Va. 251; Martin v. Thayer, 37 Id. 38.
Attack is made upon the motives of the attesting witnesses. Bowers is assaulted on two; grounds. One that he was paid by Stewart for drafting the will. He was entitled to pay fuom some quarter. Stewart gave him a note for $100 payable on condition that the will should be sustained. Bowers 'swears that Mrs. Brookover owed him for legal services. If so, the estate would be liable in Stweart’s hands for its payments, if the will should stand; otherwise not. Stewart did no wrong in giving such a note; Bowers did no wrong in taking it. It is charged against Snodgrass that he read the love letters of Stewart to Mrs. Brookover and answered them, and knew Stewart’s designs upon the woman, and was in conspiracy with Stewart. This charge is gratuitous. It is not sustained by the evidence unless by far fetched inference or suspicion for want of evidence. Snodgrass was the general and confidential attorney of Mrs. Brookover in winding up her husband’s estate and her
The next charge to overthrow the will is, that Stewart procured it by undue influence. The claim is that ho wrote her love letters, in effect promising marriage, when he did not intend to do so, and thus induced the will. There is no evidence of any request or opportunity by or for Stewart to Mrs. Brookover to make the will. Tie was absent when it was made. So, we cannot say that influence was operative when it was made at the attorneys office. “Undue influence to avoid a will must be such as to overcome the free agency of the testator at the time the instrument was made.” Forney v. Farrell, 4 W. Va. 729.
The testatrix again and again through years declared that her kin should not have her property, and declared that she intended to will it to Stewart. She gave an attorney direction to draw a will in his favor inore than thirteen months before death, so that she had ample time for reconsideration and revocation; and so the will reflects sedate design. To whom else would she give her property ? What is undue influence that will overthrow a will? The evidence shows affection, attention and kindness from Stewart to the lonely widow, bereft of friendly kin. His letters show this. “A disposition of property, induced by gratitude for kindness, affection and esteem is not the result of undue influence.” 27 Am. & Eng. Ency. L. 497. “The influence resulting from attachment, or 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.” Greer v. Greer, 9 Grat. 330. In Parramore v. Taylor 11 Grat. 239 and Simmerman v. Songer, 29 Grat. 24, the court adopted the following from Williams on Execution: “The influence to vitiate a will must amount to force and coercion, destroying free agency; it must not be the influence of affection or attachment; it must not he the mere' desire of gratifying the wishes of another, for that would be very strong grounds in support of a testamentary act; further, there must be proof that it was obtained by this
Exception is made because certain non-experts and expert wit
“The mere opinions of witnesses not experts are entitled to little or no regard, unless supported by good reason, founded on facts which warrant them, and if the reasons and facts on which they are founded are frivolous, the opinions are worth but little or nothing.” Jarrett v. Jarrett, 11 W. Va. 584, section 10. These witnesses were all allowed to state their facts fully, and it was for the jury to judge what they showed, not for the witnesses to tell the jury what, in' their opinion, should be their conclusion from those facts. The facts were mostly or all light and frivolous. Should a trial be upturned for so light a cause? Dr. Dinsmore knew the woman slightly; had practiced in New Mar-tinsville the latter part of 1891 and nine months in 1892, six years before the will, and then moved to Pennsylvania. He called on. Mrs. Brookovcr once, and because she was indisposed to be examined and receive treatment, as many people are, he took up the opinion that her mind was not good — a very inadequate reason. He stated facts, and gave opinion as to her mind, and the jury could well form an opinion as to the effect of his evidence as an expert, and simply because he was not allowed to give his opinion, his mere opinion, as to her capacity for business, we are asked to reverse a trial. What though Mrs. Brookovcr was not accomplished in business? That capacity is not necessary to make a will. Is a man or woman inefficient in business to be denied right to make a will? If she was capable of recollecting the property she was about to dispose of, the manner of disposing of it, and the object of her bounty, that is enough, though she could not transact general business. Greer v. Greer, 9 Grat. 330.
Therefore, we affirm the judgment.
Affirmed.