Huff v. Welch

78 S.E. 573, 115 Va. 74, 1913 Va. LEXIS 11

Opinion

Cakdwell, J.,

delivered the opinion of the court.

The purpose of this suit is to contest the will of Edward H. Huff, deceased, which had been admitted to probate in the circuit court of Rappahannock county; the bill attacking the validity of the will being filed by M. J. Welch, a nephew of the testator. The grounds upon which it is. claimed that the paper writing in question is not the last will and testament of the deceased are: (1) It was not executed and witnessed as required by law; (2) The said Edward II. Huff did no.t have testamentary capacity sufficient to execute said paper purporting to be his last will; and (3) Undue and improper influence exercised over the said Edward H. Huff by Lucy Phillips and some of her adult children, beneficiaries named in the paper writing purporting to be his last will.

There was an issue out of chancery to determine the questions raised by the pleadings, and the first trial thereof resulted in a mistrial and at the second trial the jury rendered a verdict finding that the paper writing in question was not the true last will and testament of the said Edward H. Huff, deceased, which verdict the trial court refused to set aside and entered its decree ratifying and confirming the finding of the jury, from which decree the plaintiffs in the issue obtained this appeal.

The objection of the appellee to the sufficiency of the record with respect to the certification by the trial court of the evidence, founded upon an error in copying the record, has been met by the certification of the clerk of an addendum to bill of exceptions No. 2, purporting to set forth the evidence, and, therefore, said objection will not be further considered.

It appears that Edward H. Huff died in Rappahannock county on the 10th day of February, 1910, after nine or ten days of illness, at the age of seventy-eight years, and that the paper writing in question was executed by him on tfie date therein stated, to-wit, the 81st day of January, 1910, and was afterwards duly probated as his last will and testament, whereby he bequeathed all of his personal property to his brother, W. J. Huff (spoken of in this record as John Huff), and devised his real estate, consisting of an undivided half interest in a tract of land known as the “Huff Place,” to said John Huff for life, and then to the ten living children of Lucy Phillips and to the ten living children of Anna Robinson, deceased, each of the ten living children of Lucy Phillips (all of whom are named by the testator) “to take one eleventh of my said undivided interest in said real estate and the children of Anna Robinson, deceased, one eleventh part; I leave the said children of Lucy Phillips and the children of Anna Robinson, deceased, my interest in the said real estate after the death of my said brother, W. J. Huff, because they the said Lucy Phillips and her children have been faithful servants to me; Having heretofore deeded to my nephew, Mortimer Welch, my interest in the Holtzman place, it is my desire that he have no part of my estate.”

The fact that the children of Lucy Phillips are John Huff’s children is not questioned. Neither the said testator nor John Huff ever married, and their only sister, Oolumbianna Welch, died some years ago, leaving sur viving her a husband, Aldrich Welch, and a son, M. J. Welch, spoken of in this record' as “Malt” Welch, and who is the contestant of said will in this ligitation. It further appears from the record that some time before the civil war Edward and John Huff and their sister, Columbianna Welch, inherited the “Huff Place,” subject to an incumbrance securing a debt of about $1,800, and that they lived upon and held the said property in common for many years; that during the time Edward Huff, a skilled stone mason, followed his vocation, while John Huff was engaged in the huckstering trade about the country, their earnings going into the common or partnership fund; that Aldrich Welch and the boys of John Huff and Lucy Phillips ran the place, and the grown girls, also the children of John Huff and Lucy Phillips, together with the latter attended to the house work; that by these united efforts the debt of $1,800 on the “Huff Place” was paid off and later another piece of property, known as the “Holtzman Tract,” was purchased, and that in 1892 Edward and John Huff had a division with Columbianna Welch whereby the “Holtzman Tract” was deeded to her as her share of the joint' estate, and she and her husband moved over to the “Holtzman Tract,” while Edward and John Huff never had a division between themselves, but continued to live upon the “Huff Place” and to hold it and all of their property as joint owners.

It further appears that Lucy Phillips and her children, or some of them, lived on the “Huff Place” with Edward and John Huff for at least fifty years, during which time neither Lucy Phillips nor any of her children ever received any compensation for their labor and service; that Lucy Phillips and her children always deported themselves kindly and attentively towards Edward and John Huff, nursing them in sickness and looking after their welfare and comfort when they grew old and feeble, Lucy Phillips and three of her children being with Edward continuously during his last illness, while a fourth came from the State of Ohio to see him before his death. It further appears that all these children of John Huff and Lucy Phillips are of . good character and were at all times attached—in fact devoted—to both Edward and John Huff and they to them, as evidenced in part by the fact that Edward and John Huff gave to each of the boys a horse and to each girl a cow when they left the “Huff Place,” and gave dances and marriage parties for them, “Malt” Welch being also tendered and accepted a “home-bringing” at the “Huff Place” on the occasion of his marriage; and in these environments the said testatoi*, Edward Huff, as seems to be conceded, lived his life out, satisfied with his surroundings, of which he, of course, had full knowledge, yet made no protest against them. On the other hand it appears, and equally as clearly, that between Edward and John Huff and “Malt” Welch and his family, in later years, there was but little intercourse, and that during the last illness of Edward Huff “Malt” Welch, who had not been at the “Huff Place” for several years, visited him but two or three times, rendering little or no service in looking after the welfare .or comfort of the sick man, but this duty, so far as he was concerned, was left to devolve upon Lucy Phillips and her children, and was faithfully performed. While Edward Huff, according to “Malt” Welch’s own statement, was. able to and did attend church regularly and to visit neighbors as late as November or December next before his death, he had not visited the home of “Malt” Welch for more than two years.

The will which is here attacked was written by Charles H. Keyser, a practicing and reputable laAvyer of good standing, as seems not to be questioned, and he testified in this case that Avhen he arrived at the home of the testator the latter told Avitness that he Avanted him to dran „ his will; that the testator ate dinner Avith witness and others at the table and went outdoors at least once that day; that no one was present during the drawing of the will except witness and the testator; that testator gave the necessary instructions, dictated the names of the beneficiaries, and detected an error in the will aS first drawn; that the will was then redrawn and the error which the testator detected eliminated; that in the -mean time Wade Massie and John Updike were sent for to witness the will, but after learning the disposition of the property Massie requested to be excused from becoming a witness to the will, because he thought it likely there would be a contest over it and he did not wrnnt to get mixed up in a law suit; "that testator then signed the will in the presence of Keyser, the draughtsman of it, and John Updike, who subscribed the same as witnesses; that testator was then sitting in an invalid’s chair, reclining slightly, and again when referring to the disposition he had made of his property stated that that was the way he wanted it to go, and that if he had paid Lucy Phillips’ children for the work they had done it would amount to much more than he was giving them in his will.

Keyser, Updike and Massie, the witnesses of the factum, all testified, being the only witnesses in the case who could speak of the testator’s condition immediately at the time of , the execution of the paper in question, and they unite in stating, without qualification, that when the will was executed the testator’s mind was clear and good; that he fully understood the transaction and all about what he was doing; Massie stating not only that the testator was fully capable of making his will, but he told witness then and there “that that was his will; that that was the way he wanted his property to go,” and urged him (Massie) to witness the will, and Massie’s only reason for not doing so was that “he feared there would be contest by the Welches” and he.“did not want to be bothered with having» to testify in a suit.”

Will Rowl'es, another white neighbor of the testator, and also of high standing, who talked with the testator shortly after dark on the day his will Avas written and executed,testifies that the testator was fully capable of making a will on that day if he had thought it over before, and stated certain facts gathered from the; testator as to the reasons which had prompted him in preferring to dispose of the property as he had done; and that he recognized witness and “talked intelligently.”

The trial court gave to the jury an instruction, not objected to, that there was no evidence in the case to support the issue of undue influence, and in reaching their conclusion they should eliminate that question, and the charge that the paper Avriting in question was not ’executed and witnessed as required by laAV has been practically abandoned in this court; so that the real issue presented is, whether or not the evidence warranted the finding of the jury with respect to testamentary capacity of the testator.

The testimony offered to sustain the charge of mental incapacity is that of a numb’er of Avitnesses who claimed to have known the testator Avell and who express the opinion that he was not competent to make a will, which evidence when analyzed discloses that the opinions of the witnesses are based only on the circumstances that the testator was old (78 years of age), rather feeble, and his memory not as good as formerly, as evidenced by his being at times unable to recall the names of persons whom he had known for years, or the name of a place or places with which he had been familiar, or on eccentric acts or expressions gathered at different times from testator’s whole life, None of the witnesses say that the testator had abandoned his former and usual interest in his business affairs, or was incapable of understanding and looking after them, or did not’ have knowledge of his property or Avas incapable of selecting the subjects of his bounty when he came to de termine to whom he would prefer to will his property; in fact, the unconflicting testimony in the case is that the testator attended to his ordinary business affairs up to the time of the execution of his will and later, and was at the time his will was executed of sufficient intelligence to understand the nature of the business in which he was engaged, to recollect the property that he wished to dispose of, to know and recall the objects of his bounty, and the manner in which he wished to distribute his property among them.

The plaintiffs in the issue (appellants here) asked for ten instructions to the jury, all of which were refused, and in lieu thereof the court gave fourteen instructions, designated respectively as A, B, C, D, O, P, H, Q, R, 1, 2, 3, 4 and 5, to which refusal to give appellants’ instructions and the giving of the instructions of the court marked 1, 2, 3, 4, 5, O, H and P the appellants excepted.

The instructions given by the court, all of which appear in the statement preceding this opinion, were ample to submit to the jury fully and fairly the case which the evidence adduced tended to prove, and we are, therefore, of opinion that the court committed no reversible error in its rulings with respect to the instructions refused- or to those given. '•

. :“The law requires, in determining mental capacity, not so' much of any particular character or intellect -as the ability to make certain .efforts of the mind and memory. The rule of testamentary, capacity is that the testator must have sufficient mind and memory to intelligently understand the nature of the business in which he is engaged, to comprehend generally the nature and extent of the property which constitutes his estate, and which he intends to dispose - of, and to recollect the objects of his bounty. If he possesses these attributes he has testamentary capacity. The testator need not have the same perfect and complete understanding and appreciation of these matters, in all their bearings, as a person in sound and vigorous health of mind and body would have; nor is he required to know the precise legal effect of every provision made in his will. Absent-mindedness or mere intellectual feebleness does not disqualify a person to make a will, as the feeble have as much right to dispose of their property as the strong, but something short of insanity is sufficient to invalidate it. One capable of transacting ordinary business is presumed capable of making a will although not of sound mind.” 40 Cyc. 1004, and authorities cited.

At page 1108 the same authority says: “If the testamentary requisites are found the will may be valid, although executed by one of great age whose mind is enfeebled, whose body is debilitated, whose memory is failing, and whose judgment is vacillating, especially where the will is fairly made and apparently emanating from a free will, or where testator was a good business man; but not where an aged person is so enfeebled mentally as not to understand what he is doing, as when he is suffering from hallucinations or paralysis or softening of the brain.”

“The law prescribes no limit in point of age beyond which a person cannot dispose of his property. A man eighty-nine years of age is often as capable of making a deed or will as at any other period of his life. The greatness of his age is not proof of mental incapacity.” Howard v. Howard, 112 Va. 566, 72 S. E. 133.

The authorities have not undertaken to prescribe any particular degree of mental acumen as the measure of one’s capacity to execute deeds or wills, but all agree that the test is whether the party had at the time of the execution of the instrument sufficient capacity to understand the nature of the transaction he was entering into, and to assent to its provisibns. Wampler v. Harrell, 112 Va. 635, 72 S. E. 135.

In Jarrett v. Jarrett, 11 W. Va. 584, the court, in discussing whether or not a grantor in a deed had mental capacity at the time of its execution, said, with respect to the weight to be given evidence upon the question of mental capacity, that the evidence of witnesses present at the execution of the deed is entitled to peculiar weight, and that the mere opinions of witnesses not experts are entitled to little or no regard, unless they are supported by good reasons founded on facts which warrant them; and if the reasons and facts upon which they are founded are frivolous the opinions of such witnesses are worth but little or nothing.

In the recent case decided by this court, Woody et al v. Taylor et al, 114 Va. 737, 77 S. E. 498, the opinion by Harrison J., in disposing of strikingly similar testimony to that offered in this case to sustain the charge of mental incapacity of the testator to make a will, says: “They (the witnesses) 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.”

In Beverly v. Walden, 20 Gratt. (61 Va. ) 147, the opinion by Christian, J., says: “In such case the testimony of witnesses present at the factum, and the written acts of the party attesting his capacity, are more to be relied on than the mere opinions of other witnesses, based upon facts which may be true yet not the result of unsoundness of mind.” Porter v. Porter, 89 Va. 118, 15 S. E. 500.

Expressions of opinions by witnesses that the testator was not competent to make a will based upon facts which do not sustain the opinions are not to be considered as conflicting with the evidence of the witnesses of the factum who speak of the testator’s condition immediately at the time of the 'execution of the paper in question and unite in the un qualified statement to the effect that when -the paper was executed by the testator his mind was clear and good, and that he knew all about what he was doing. Woody v. Taylor, supra.

It is very true that in such cases as this the proper judges of the weight and credit due to the testimony of the witnesses are the jury, and their verdict, when sanctioned, as in'this case, by the trial court, is entitled to the highest respect in the appellate court, but when there has been a plain and palpable deviation from the proof, interference on the part of the appellate court is warranted. Young v. Burner, 27 Gratt. (68 Va.) 96.

We have here the clear and positive testimony of not only the two attesting witnesses of the will, but that of Wade Massie and of-Will Eowles, two reliable neighbors, as well as that of Hugh Phillips who lived with the testator up to the time of his death, as to the capacity of the testator to make a will, none of which testimony conflicts with any evidence introduced by the contestant of the will; moreover, there is other unconflicting evidence adduced by appellants, the proponents of the will, plainly showing a memory consistent with the testator’s age, and a capacity to understand his business affairs and to direct their management, not only np to the date of his will, but after, and practically to the last of his life.

We are of opinion that the verdict of the jury complained of is a plain and palpable deviation from the proof in the case, and, therefore, the decree of the circuit court appealed from has to be reversed, the verdict of the jury set aside, and the cause remanded for further proceedings therein not in conflict with the views expressed in this opinion.

Reversed.