Forney v. Ferrell

4 W. Va. 729

• Court: West Virginia Supreme Court
• Decided: January 15, 1871
• Status: Published

Opinions

Maxwell, J.

A bill was filed in the circuit court of Brooke county, under the statute, to contest the validity of the will of Mary Forney, deceased, who was a married woman.

The court made an order that a jury should be empan-elled at the bar of the said court, on the law side thereof, to ascertain and determine by their verdict the issue, whether any, and if any, how much of the papers in the bill mentioned, dated respectively December 27th, 1861, and March 7th, 1866, be the will of the decedent Mary Forney.

A trial was accordingly had before a jury, during which numerous rulings of the court were made and excepted to, and about twenty bills of exceptions signed.

The 1st, 2d and 3d bills of exceptions are to opinions of the court admitting testimony of acts of the devisee J. B. Forney, tending to show undue influence exercised by him over the testatrix. What the acts were, does not appear from the bills of exceptions, but it appears that the acts referred to in the first bill occurred in the year 1848; those in the second, in 1852, and those in the third, in the year 1866, while the will was executed in 1861, if executed at all. It is insisted that these acts were too remote from the time of the execution of the will to show undue influence over the testatrix at the time of its execution.

TJndue influence to avoid a will must be such as to overcome the free agency of the testator at the time the instrument was made. If undue influence be proved to have been exercised over the testatrix, both before and after the execution of the will, I cannot see why the facts should not be given in evidence to the jury, from which they might infer, if they should see proper, that undue influence was exercised over her at the time the will was made.

The fourth bill of exceptions is to the opinion of the court admitting to go in evidence to the jury a conversation in the presence of the said testatrix, and another conversation of the said testatrix as to what she would do at the time of her decease, with the property devised by her. I am unable to see any objection to this ruling.

The fifth bill of exceptions is to the opinion of the court allowing evidence of the oral declarations, admissions and conversations of the devisee, J. B. Forney, to go in evidence to the jury to prove undue influence by him over the testatrix. There are two other devisees, who were infants at the time of the trial. It is claimed that the declarations and admissions of the said J. B. Forney cannot be admitted in evidence against his eo-devisees. There is much conflict of authority on this question, but the weight of authority seems to be that the declarations, admissions and conversations of one devisee, cannot be admitted in evidence against his co-devisees. Shailer v. Bumstead, 99 Mass., 112; Clark v. Morrison, 25 Penn. State Rep., 453; Titlow v. Titlow, 54 Penn. State, 222; Osgood v. Manhattan Co., 3 Cowen, 612; Daw v. Brown, 4 Cowen, 492; Hanberger v. Peat, 6 W. & S., 431; Thompson v. Thompson, 13 O. State, 358; Blakey v. Blakey, 33 Ala., 616; Rogers v. Rogers, 2 B. Monroe, 324; Beall v. Cunningham, 1 B. M., 399; Brown v. Moore, 6 Yerger, 272.

I am unable to see any error in the sixth, seventh, eighth and ninth bills of exceptions. The exceptions to the opinion of the court taken in the tenth bill of exceptions, refusing to allow certain questions to be asked a female witness, are not well founded.

The doctrine on this subject was-fully considered in Howell’s case, 5 Grattan, 664, and settled as ruled by the court in this case.