12 W. Va. 760 | W. Va. | 1878
delivered the opinion of the Court:
This case is presented to us by August Weidebusch, upon an appeal from, and supersedeas to a decree rendered by the circuit court of Ohio county, November 15, 1873, which declared the equity of the case with the defendants, and dismissed the plaintiff's bill.
The plaintiff by his bill, which was filed the first Monday of July, 1872, sought to vacate and annul a certain deed made and entered into between said Weide-busch and one Zachariah Jacob, December 24, 1850, upon the ground that said Jacob,- “ through misapprehension and by mistake,” drew up a deed instead of a will, when the plaintiff intended and desired to make a will and not a deed. The question, therefore, for our consideration is one of fact.
The bill was sworn toj and was answered by the defendants, Herman Hartenstein, .jLouisa his wife and Roberta Gocke jointly, and the aiiswer was sworn to by them.
Weidebusch alleges that on the 24th day of December, 1850, he “being then almost wholly unacquainted with the English language and with the
“ Your .orator further shows unto your honor that from the explanations given by said Jacob at the time of the contents of the said paper to your orator, he believed it provided for such a disposition of your orator’s property after his death as your orator then desired : but being at that time wholly unable to read English writing, your orator was unable to inform, himself further concerning the effect of said deed, and when he was advised that said paper would dispose of your orator’s property in the manner which was desired by all those interested in the same, and that he should sign said paper, your orator did execute the same, under the impression that it was a will, and intending and meaning thereby to execute a will, and not a deed. And further that the said paper so executed was afterwards duly admitted to record in the clerk’s office of the County Court of Ohio county ; that your orator and the defendants hereto fully^believed that the said paper, so prepared,.executed and recorded as aforesaid, from the said date up to and within a few months now last past, was your orator’s last will and testament, when your orator then, for the first time, discovered the mistake here complained of, and satisfied himself that said paper was not his will. ”
The bill alleges the death of Teresa, the wife of Wm. Knipping, and Mr. Jacob, the draftsman of the deed.
The defendants, Louise and Roberta, in answer to the bill say, “ that at the time of the making of the deed of trust exhibited in this bill, the said Louise was about 17 years old, was a full grown girl, and then lived with the said Z. Jacob for wages, which she regularly paid to the plaintiff, and that the said Roberta was two years older than the said Louise; that so far as these respondents know or believe, none of the children of the said Teresa
The answer of the defendant is so responsive to the bill as to the misapprehsnsion and mistake of the draftsman of the deed, that the onus is thrown upon the plaintiff to make out his case by satisfactory evidence, which “must be strong and clear.” McMahon v. Spangler, 4 Rand. 51; Lord Hardwicke said the proof proper in such a case ought to be the strongest possible. In the language of Judge Carr: “The solemn acts of the parties under their hands and seals, are not to be
Tbe plaintiff deposed, that “sometime in the year 1850, the mother of the defendants, who was then my wife — we having no children together — we thought it was necessary to make a will, in case I, should die that she should become the owner of the property. So we went to Mr. Jacob and, told him, to draw up a will and so he did. We left that will in his possession, afterwards he told me that I should go to the court house and get that will, I did so. I had that will and filed it with my papers. After my wife died, I examined those papers, and found when I was reading this document that it looked more like a deed; I went to some attorney with it and got it examined there; they told me it was a deed.”
To the question: What were your instructions to Mr. Jacob, to draw a deed or .a will? He answered: “To draw a will.” When asked who gave the directions to Mr. Jacob to draw the instrument? Answered: “So much as I can recollect, it was my wife and my stepdaughter, Lohise Hartenstein; she lived with Mr. Jacob at that time.” When asked to state, “ what the directions were as given by Louise Hartenstein and your jwife to Mr. Jacob on that occasion ?” He replied: “ I can’t say.” On cross-examination being asked: “Did you hear1 Louise give Mr. Jacob any directions about writing the instrument ?” He replied : “ 1 did not.” When asked: “ Did you hear your then wife give Mr. Jacob any directions about writing the instrument?” Here-plied : “ I did not hear it.” Asked: “ Where did Mr. Jacob write this document?” Answered: “In his own house ; he read it to me in South Wheeling.” On redirect-examination, when asked to state if he directed his wife and Louise as to how they should direct Mr. Jacob in drawing this instrument, he answered: “ I told my wife that Mr. Jacob was to draw up a will.” To the request: “ State if you ever had any conversation with Mr. Jacob about it yourself. ” He answered : “ 1 had not.” *
The plaintiff alleges that at the time the deed was drawn, he was “ almost wholly unacquainted with the English language,” and that his then wife, Teresa, and her children, the defendants, Louise and Roberta, &c., were “wholly unacquainted” with the Énglish language; and that they went to Mr. Jacob to have the will “drawn up,” and that he and his wife explained to said Jacob “in the best manner they could, without the intervention of an interpreter, what they desired to have done,” cfec.; and that “through their inexperience in the English language,” &a., “failed to make Mr. Jacob distinctly understand,” &c. In his deposition Mr. Weidebusch says: “At that time I could talk English, and give answers, but couldn’t read and write English.” To the question, “ Could Louise Hartenstein talle English at that time ?” he replied, “I believe she could better than I could.” To the question, “Could your wife talk English” at that time ? he replied, “Not very much.” Thus it seems, that with his own lips he contradicts the allegations of his bill.
Again, the deed shows one of the moving considerations for its execution, was, that his step-children had “assisted ” him in paying for the lot. But the plaintiff alleges, that it is not true, as is stated in the deed, that the step-children assisted, him in paying for the prop
The defendants, on the other hand, allege in their answer “ that they went out to work to raise money to assist the said Weidebusch to carry on his business, and with which to purchase property ; that at the time of making the deed of trust exhibited in this bill, the said Louise was about seventeen years old, was a full grown girl, and then lived with the said Z. Jacob for wages, which she regularly paid to the plaintiff; and that the said Roberta was two years older than the said Louise. ” “Roberta was living at Judge Fry’s in Wheeling. ” Louise testified that she was a hired girl at the time the deed was executed, living at Mr. Jacob’s, working tor wages and that Mr. Weidebusch and her mother received her wages; that sometimes she gave her wages to her stepfather, and sometipies to her mother. To the’ question, “ Who clothed you during that time, ” she answered, “ I didn’t have much clothes; my mother furnished what I got; Mr. Weidebusch made my shoes. ”
Roberta in her sworn statement says, that she didn’t see, read or hear the paper read. When requested to state what directions she gave Mr. Jacob about writing it, or what directions she heard any other person give him about writing it, replied, “ I did not hear anything said about it; I don’t know anything about it.”
Mr. Good deposed substantially, that he went to Roberta Gocke and told her he understood there was some business dispute between her and her step-father, and that he came to see if he could effect a compromise, &c., and that he asked her whether she knew that the instrument which her step-father had executed was a will or deed; and that “ she said that she was present at the time Mr. Jacob wrote it, and that she knew it was a will or language of similar import;” and also, that “Mrs. Gocke said that she was present and spoke to Mr. Jacob about the business of her father, and told him that he desired a will, and explained to him the understanding of both
Mr. Rogers, another lawyer for Weidebusch, deposed substantially, that he "went with Mr. Good, and was present at his interview with Mrs. Gocke ; and that his recollection was, that Mrs. Gocke said she was present when Mr. Jacob wrote the paper, or words to that effect. That “ she said it was not a deed; it was a will.” Again he says, “ she spoke of the matter as having been prepared by him, Mr. Jacob, after he had received his instructions from somebody — whom, she did not state — as to the intention of Mr. Weidebusch in having the paper drawn.”
So it appears that Mr. Good and Mr. Rogers do not tally as to what Mrs. Gocke did say as to the person giving directions to Mr. Jacob, although both were present for the purpose of watching and weighing her answers to Mr. Good’s questions, yet whilst Mr. Good says'that Mrs. Gocke said “she spoke to Mr. Jacob about the business of her father and told him that he desired a will and explained to him the understanding of 'both her father and mother,” Mr. Rogers as appears from the foregoing deposition says, “whom she didn’t state.” Mrs. Gocke says as to the interview with Good-“I didn’t say it was a will or a deed; I said I knew what it was; that was all I told him.” Mrs. Harten-stein does not remember whether she answered Good whether it was a will or deed. If it were possible to look upon whatever was said by Mrs. Gocke or Mrs. Harten'stein when apart, in answer to Mr. Good, seriously with an eye to rescind the solemn deed of Weide-busch, we could only view it as “loose and vague conver
I am therefore of opinion, that the decree of the circuit court is right, and should be affirmed with costs, and $30.00 damages.
Decree Affirmed.