114 Va. 737 | Va. | 1913
delivered the opinion of the court.
It appears that the testator was a citizen of Richmond, who died in June, 1910, at the advanced age of eighty-six, possessed of a considerable estate, and without lineal descendants. His. wife died many years before his death. There were two children of the marriage, both daughters. One of these married E. Harvie Spence, a merchant of Richmond, and afterwards died without issue. The other daughter married a Mr. Bruce, and died leaving an only daughter, who married Josiah Vaughn, a druggist of Richmond.
The uncontradicted evidence shows that throughout all the years of his life, after Mr. Spence became his son-in-law and Mr. Vaughn became his grandson-in-law, the warmest and most cordial relations existed between them. They lived together most of the time, and when not actually living under the same roof their intercourse was almost daily and very intimate, the testator manifesting his interest in and affection for them in many Avays. One of the
On the 14th day of February, 1908, the testator made and executed his will, by which, after providing for his funeral expenses and debts, he made the following disposition of his estate:
“3rd Item: I give, bequeath and devise to my son in law, E. H. Spence, and my granddaughter, Annie C. Yaughn, wife of Josiah Yaughn, all the rest and residue of my estate both real and personal, after the payment of my just debts, in equal portions, share and share alike, and if my said granddaughter, Annie C. Yaughn, should die before I shall depart this life, give, bequeath and devise to my grandson-in-law, Josiah Yaughn, the husband of the said Annie O. Yaughn, that portion of my estate which, in event of his surviving me, will go to my said granddaughter under the first portion of this clause.”
4th Item: “Having the fullest confidence in the integrity of my hereinafter named executors, I have requested them to perform certain acts and do certain things, a memorandum of which acts and things is to be found in my private papers of which my executors know, I hereby enjoin them to carry out to the letter the terms of said memorandum.”
5th Item: “I hereby appoint my son-in-law, E. H. Spence, and my grandson-in-law, Josiah Yaughn, executors of this my will and desire that no security be required of them as such.”
The memorandum referred to in this bill consisted of a list of small legacies to charities and a number of personal friends, which were to be paid after his death, unless paid and marked off by him during his lifetime. The paper
On the 23rd of September, 1909, the testator made and executed a paper which is designated as a codicil to his will, but which is in substance a new will, by which, after setting forth that E. H. Sp'ence and Annie O. Vaughn had both departed this life, making the codicil necessary, he devises and bequeathes the portion of his estate which was intended for said E. H. Spence^ to-wit: on'e-half thereof to Mrs. Bessie A. Spence, the second wife of his deceased son-in-law, and E. Harvie Spence, Jr., and Miss Mary D. Spencer, share and share alike, or one-sixth each, and gives the remaining half of the estate to Josiah Vaughn, the husband of his deceased granddaughter, and provides that should Vaughn not be living when he died, that the share intended for him should fall in with the other moiety of his estate and pass to Bessie A. Spence, Mary D. Spencer and E. Harvie Spence, Jr. In lieu of the fourth item of his will; he provides in the codicil for the small legacies which had been mentioned in the memorandum referred to in his will. He appoints his grandson-in-law and H. Selden Taylor his executors, and requests that no security be required of them.
In view of the long, intimate and devoted family relations that had existed between the testator and the chief objects of his bounty provided for both in the will of February, 1908, and the codicil thereto of September, 1909, and of the fact that he had no lineal descendants, and no collateral kin that he had ev'er manifested any special interest in, there was nothing unreasonable or unnatural in the disposition made by him of his estate.
Viewing the evidence in this case from the standpoint of a demurrer to the evidence, we are of opinion that the appellants have failed to sustain the allegations of their bill, that the testator was incompetent to make the will and codicil thereto involved in this controversy, and that
Tbe only evidence adduced by tbe contestants in support of tbe charge that undue influence was exerted over tbe testator was tbe testimony of one or two ladies, who say that they thought that Mr. Spence and Mr. Yaugbn bad considerable influence with tbe testator; and yet one of these witnesses, on cross-examination, says that tbe testator always did bis own way; thought bis way was right, and that be was an independent sort of man who did bis own thinking. In tbe light of such evidence, it is needless to dwell longer upon tbe charge of undue influence.
As to tbe charge of mental incapacity, it is said in Bobertson’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 tbe mind has been impaired by disease. Tompkins v. Tompkins, 1 Bailey [S. C.] 92, 19 Am. Dec. 656. It is not necessary that tbe testator, at tbe time of making bis will, should retain all tbe force of intellect which be may have bad at a former period. If be be still possessed of mind sufficient to comprehend and advise as to tbe ordinary transactions of bis life and to give directions bow bis business shall be conducted and bis estate managed, be may be considered competent to make a will disposing of bis estate. Kennedy, J., in Kach
The principles announced by this high authority have been repeatedly upheld by this court, the latest cases being Howard v. Howard, supra, and Wampler v. Harrell, 112 Va. 635, 72 S. E. 135.
The testimony offered, in the case at bar, to sustain the charge of mental incapacity is that of a number of ladies who claim to have been more or less intimate with the testator. They express the opinion that he was not competent to make a will, but, as was said in Beverly v. Walden, 20 Gratt. (61 Va.) 147, this is their opinion, but when we come to analyze their evidence we find that their opinions are not justified by the facts upon which they are based. The principal circumstances relied on to support the opinion expressed by these witnesses are that the testator was old, feeble and childish; that his memory was not good; that he would forget sometimes that he had read a letter and want it read again; that he was failing, just like old age coming; that he always wanted his own way; that he would sometimes wash his own clothes; that he would use rags for handkerchiefs; that on one occasion he came to his breakfast table with only his underclothes and a linen duster on, and on another occasion went on the lawn similarly attired; that he wore his clothes in a rusty and dilapidated condition, and a few other eccentricities of no greater moment than those mentioned. Most of these witnesses testify that he looked after his business; some of them say that he was interested in everything, and practically all of them unite in the statement that they thought his mind would come and go. To a number of them he gave checks for as much as $25 to $50 as presents. These checks were always accepted, and the opinion expressed that on such occasions his mind was all right. Two other
Dr. Davis, introduced by the contestees, says that he was the family physician of the testator for forty-eight years and knew him intimately both professionally and socially throughout that long period and to the night of
The evidence for the proponents not in conflict with that of the contestants abundantly shows that the testator was a strong-minded business man, who was very much given to doing his own thinking and insisting upon his own view in the management of his business affairs; that up to a period after the date of the execution of the papers in controversy he was attending actively and intelligently to his business affairs, dealing with real estate agents who collected his rents, making contracts, keeping his own bank account, drawing checks, and doing other things incident to the daily business life of a normal man who had business matters to attend to. The witnesses to the factum, who testified, and whose evidence in such cases is always of the first importance, and who are the only witnesses in this case who speak of the testator’s condition immediately at the time of the execution of the papers in controversy, unite in the unqualified statement that both when the will and the codicil were executed the testator was all right, his mind very clear and perfectly good, and that he knew all about what he was doing.
Upon the whole case and with due regard to the rules applicable in the case of a demurrer to the evidence, we are of opinion that the contestants have failed to make out their case, and that the chancery court was plainly right in sustaining the demurrer to the evidence and dismissing the bill. The decree appealed from is, therefore, affirmed.
Affirmed.