17 W.Va. 683 (W.Va. 1881), McMechen v. McMechen

Citation:17 W.Va. 683
Opinion Judge:JOHNSON, JUDGE
Party Name:MCMECHEN et al. v. MCMECHEN et al.
Attorney:W. P. Hubbard and Daniel Lamb, for appellants, James Morrow, Jr., for appellants,
Judge Panel:JOHNSON, JUDGE, furnishes the following statement of the the case: THE OTHER JUDGES CONCURRED.
Case Date:April 30, 1881
Court:Supreme Court of Appeals of West Virginia

Page 683

17 W.Va. 683 (W.Va. 1881)

MCMECHEN et al.

v.

MCMECHEN et al.

Supreme Court of West Virginia.

April 30, 1881

1. A widow has no right to contest her husband's will, for she is not bound by it but may renounce it.

2. But her children, who were the heirs of the testator, have the right by their mother as their next friend to take an appeal from the probate of the will.

3. The fact, that the widow was improperly joined in the appeal, does not affect the rights of the children by their mother and next friend in the said appeal.

4. The devisees of a testator are his assignees within the meaning of sec. 23, chap. 130 of the Code.

5. To exclude the evidence of a wife after the death of her husband of conversations had by the wife with her husband, it must not only appear, that she testifies against such parties as are mentioned by said statute, but also that she testifies in her own behalf, that is, she must also testify in her own individual interest, unless the conversations were such, as would be excluded at common law.

6. The widow in her own right not being allowed to contest her husband's will, was not at liberty to choose which side of the appeal she would take, but must be made in this appeal an appellee.

7. When a medical expert is asked to give his professional opinion to a jury, not upon matters within his own knowledge, but upon a hypothetical case founded upon the testimony of witnesses previously examined in the case, the questions to him must be so shaped, as to give him no occasion to mentally draw his conclusions from the whole evidence or a part thereof, and from those conclusions so drawn express his opinion; or to decide as to the weight of evidence or the credibility of witnesses; and his answers must be such, as not to involve any such conclusion so drawn, or any opinion of the expert as to the weight of the evidence or the credibility of the witness.

8. The opinion of medical experts, founded on testimony already in the case, can only be given on a hypothetical case, and the hypothesis must be clearly stated, so that the jury may know with certainty, upon precisely what state of assumed facts the expert bases his opinion.

9. At common law a man could not make a will; and the statutes of wills changing the common law, and permitting persons to dispose of their property by will, but requiring, that the testator should be of sound mind, as to testamentary capacity changed the common law presumption of sanity, and cast the burden of proof upon the propounder of the will, to show that the testator was sane when the will was executed.

10. When a will is offered for probate, the burden is on the propounder to prove, that the will was duly executed according to the requirements of the statute, and that at the time of the execution thereof of the testator was of sound mind and apthorized under the statute to make a will.

11. The burden of proof of fraud or undue influence, exercised to induce the testator to execute a will, is not on the propounder thereof, but upon him who alleges it to exist.

12. It is error to give inconsistent instructions to the jury, for it is calculated to confuse and mislead them; it leaves the jury at liberty to decide according to the correct rule of law or the contrary, and renders it impossible for the court to determine upon what legal principle the verdict was founded.

13. If a person writes or prepares a will, under which his infant children take a benefit, that is a circumstance which ought generally to excite the suspicion of the court and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, in favor of which it ought not to pronounce, unless the suspicion is removed.

14. It is improper for a court in instructing a jury to single out certain facts and instruct the jury, that if they are true, they should find for either party in accordance with such facts when there are other facts in the case bearing upon the subject.

15. Where the question was, whether the testator at the time his signature was affixed to his will was conscious of what he was doing, and whether the signature was written by a conscious testator or by another person for him in accordance with his desire, and it appeared, that the signature was written in a manner different from the testator's usual mode of writing it, on the question of his competency, it is proper for the court to instruct the jury, that they might consider the mode of spelling the name.

16. And in such a case, where it is a question, whether the testator acknowledged the signature to be his, it was proper for the court to instruct the jury that they might consider the mode of spelling the name.

17. If one having testamentary capacity is unable from any physical cause to write his name to his will, another person may steady his hand and aid him in so doing; and it is not necessary to prove an express request from the testator for such assistance; it may be inferred from the circumstances of the case.

18. Upon the question of testamentary capacity, if the name signed to the will is written differently from the testator's usual mode of writing it, that is a circumstance proper to be considered by the jury.

19. It is error to instruct the jury upon a conjectural state of facts, upon which no evidence has been offered; but if the evidence in the case tends to prove certain facts, it is proper to give instructions to the jury based thereon.

20. The attestation of a will is necessary to its execution; and if before this important part of the execution, and while it is being done, the testator by reason of either unconsciousness or physical inability was unable to dissent from the attestation and to arrest and prevent the same by indicating his dissent or disapproval, if he had desired to do so, the will is not valid.

21. It is not necessary that the testator shall actually assent to the attestation, but when the attestation is made, he must be in a mental and physical condition, which will enable him to dissent from the attestation, if he desires; and if his condition is such, that he could give dissent or disapproval, if he chose to do so, but did not, his assent will be implied.

22. Standing alone, evidence, that the testator had by his father's will received the largest portion of his father's estate, would be inadmissible.

23. Upon the question of testamentary capacity evidence is admissible of declarations by the testator, that he had received the largest portion of his father's estate, and that he intended by his will to restore a part thereof to his brothers and sisters, where the will shows, that he had made his brothers and sisters or their children beneficiaries therennder.

24. And after such declarations have been proved, it is proper upon the question of testamentary capacity to admit evidence, that the testator had in fact received the larger portion of his father's estate, and the extent of the inequality.

Appeal from a sentence of the circuit court of the county of Marshall refusing to admit the will of Shepherd McMechen to probate, in which James H. McMechen and others were proponents and A. C. McMechen and others were contestants, allowed upon petition of said proponents.

Hon. Thayer Melvin, judge of the first judicial circuit, pronounced the sentence appealed from.

JOHNSON, JUDGE, furnishes the following statement of the the case:

A paper-writing purporting to be the last will and testament of Shepherd McMechen, deceased, dated on the 24th day of October, 1874, was on the 5th day of December, 1874, presented to the clerk of the county court of Marshall county, and, as appears by the certificate of the clerk made on said last mentioned day, fully proved by the oaths of C. C. McMechen, Ellen Caldwell and Elizabeth Morrow, the subscribing witnesses thereto, and ordered to be recorded. And William M. List and Jesse L. McMechen, the executors in said will named, by their writing declined to qualify as such executors, and on motion of Alcinda C. McMechen, the widow of Shepherd McMechen, deceased, V. L. Cockayne was appointed as administrator with the will annexed, and qualified as such. On the 14th day of June, 1875, Alcinda C. McMechen, widow of the testator, in her own right and Mary L. McMechen and Shepherd V. McMechen, the infant children and heirs at law of Shepherd McMechen, deceased, by Alcinda C. McMechen, their next friend, took an appeal from the order of the clerk of the county court admitting said will to probate and filed their bond in accordance with the requirement of the statute in such case.

On the 21st day of June, 1875, the circuit court of Marshall county at a special term appointed V. L. Cockayne curator of the estate of Shepherd McMechen, deceased, who thereupon executed bond as such curator.

On the 22d day of June, 1875, at the same special term of said court it was ordered, that James McMechen, Mary McMechen, Susan McMechen, Benson McMechen, Benson Caldwell, William M. List, Jessie L. McMechen and others, devisees under the will be summoned to appear before the court on the 1st day of the next term thereof, to answer the said appeal, & c. On the 5th day of October, 1875, came the parties by their attorneys, and the paper-writing purporting to be the last will and testament of Shepherd McMechen, deceased, dated the 24th day of October, 1874, was propounded for probate according to the order of the court made at a former day of the term; and the appellants and contestants averred, that the said paper-writing was not the true last will and testament of the said Shepherd McMechen, deceased, and on their motion it was ordered, that a jury be empanelled...

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