Kerr v. Lunsford

• Citation: 8 S.E. 493,31 W.Va. 659
• Court: Supreme Court of West Virginia
• Decision Date: 08 December 1888
• Parties: Kerr v. Lunsford et al.

8 S.E. 493

(31 W.Va. 659)

Kerr

v.Lunsford et al.

Supreme Court of Appeals of West Virginia

December 8, 1888

1. Wills—Contest—Burden of Proof.

Upon an issue devisavit vel non, the proponents of the will have the affirmative of the issue, and the right to open and conclude the argument.

2. Same—Proof of Will—Evidence—Rebuttal.

In the trial of an issue devisavit vel non, it is not improper for the proponents to offer the will, and the evidence of its due execution, and the competency of the testator at the time it was executed, and thus having made a prima facie case to rest; and after the contestants have offered their evidence against the validity of the will, to permit the proponents to offer other evidence to sustain the will, as well as evidence in rebuttal.

3. Same—Evidence.

Upon the trial of such an issue, a general question, put to a witness, " Was there any one who influenced the testator?" is improper.

4. Same—Witness—Competency of Heir.

One who would inherit a part of the testator's property but for the will, under chapter 130 of the Code, § 23, is incompetent to speak of the testator's capacity to make the will.

5. Evidence—Medical Expert—Weight and Sufficiency.

When a medical expert is asked to give his professional opinion to a jury, not upon matters within his own knowledge, but upon an 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 conclusion from the whole evidence, or a part thereof, and from these 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 witnesses.

6. Same—Hypothetical Case.

The opinion of medical experts, founded on testimony already in the case, can only be given on an 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.

7. Same—Assumption of Facts.

In putting hypothetical questions to expert witnesses, counsel may assume the facts in accordance with their theory of them; it is not essential that he states the facts as they exist, but the hypothesis should be based on a state of facts which the evidence in the cause tends to prove. ¹

8. Appeal—Review—Harmless Error.

Where, on the trial of an issue devisavit vel non, a medical expert was permitted to answer two improper hypothetical questions, which he did, fully covering the whole case, and the court refused to permit him to answer two proper hypothetical questions which embraced no more than the two he was permitted to answer, the party who was thus deprived of having his proper hypothetical questions answered was not, and could not have been, prejudiced by the error; and for such error the appellate court would not reverse the decree and set aside the verdict.

9. Wills—Contest—Evidence of Capacity.

Where, in the trial of an issue devisavit vel non, the contestants, on the question of the testator's capacity, offered a witness who testified that about three months before the execution of the will the testator had sold a property for $10,000, and it was sold very cheaply; the proponents offered the purchaser of the property, who testified he had paid full value for it; the contestants then offered a witness who had occupied the property as lessee, and testified he knew its value, and asked the witness, "What is the property worth?"—the proponents objected, objection was sustained, and contestants excepted: held that, if error, it was not a reversible error. Johnson, P., dissenting.

10. Same—Records.

The record of an inquisition de lunatico inquirendo is admissible on the trial of an issue devisavit vel non; but where the court refused to permit to be read, on such an issue, such portion of the order of adjudication as instructed the committee appointed as to the scope of his duties, held no error.

11. Same—Stenographer's Notes.

Where, on the trial of such an issue, a witness for contestants had testified that the testator, in giving his evidence in a certain action in ejectment, was incoherent, and on cross-examination said he had the stenographer's notes of his evidence inthe action, but that the stenographer was not sworn, but the witness said the notes were substantially correct, and on motion the proponents, to contradict the witness, were permitted to read the notes to the jury, held no error.

12. Same—Former Will.

On the trial of such issue, a will executed in 1879, about two years before the will in issue, at which former date it is shown the testator was competent, is admissible on the question of his capacity at the time the will in issue was executed.

13. Same—Business Transactions.

Evidence of business transactions by the testator, both before and after the execution of the will, indicating his mental condition, are admissible on the question of his capacity at the time the will was executed.

14. Same—Opinion Evidence.

The 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; but if the reasons and facts upon which they are founded are frivolous, the opinions of such witnesses are worth little or nothing.

15. Same—Evidence of Attesting Witnesses.

The evidence of witnesses who were present at the execution of the will is entitled to peculiar weight, and especially is this the case with attesting witnesses.

16. Same—Capacity Required.

It requires less capacity to make a will than it does to make a deed.

17. Same—Old Age.

Old age is not of itself sufficient evidence of incapacity to make a will.

18. Same—Capacity at Execution of Will.

The time to be looked to by the jury, in determining the capacity of a testator to make a will, is the time when the will was executed.

19. Same—Capacity Required.

It is not necessary that a person should possess the highest qualities of mind in order to make a will, nor that he should have the same strength of mind he may formerly have had; the mind may be in some degree debilitated, the memory may be enfeebled, the understanding may be weak, the character may be eccentric, and he may even want capacity to transact many of the ordinary business affairs of life; it is sufficient if he have mind enough to understand the nature of the business in which he is engaged, to recollect the property which he means to dispose of, the objects of his bounty, and the manner in which he wishes to distribute it among them. ¹

20. Same—Omission of Children from Will.

In order to make a valid will it is not necessary that the testator should name all his children in it, or give each of them a portion of his estate. If he was mentally capable of understanding the disposition which he was making of his property, and acted freely, it is immaterial to whom he gives his property, —whether all to one, or some, of his children, or to strangers. If he has a disposing mind and memory, he has a right to do as he pleases with his property.

21. Same.

Although the testator may, perhaps, have been influenced by feelings of resentment or dislike to one or more of his children, and by feelings of affection and attachment towards others, and though these feelings may have influenced him to give his whole estate to the one part, and little or nothing to the others, this is not sufficient to make the will invalid.

22. Same—Attentions of Devisees.

If the provisions of the will were induced by the extreme kindness and attention to the testator on the part of the principal devisees, that will not constitute undue influence which will invalidate the will. ²

23. Same—Instructions—Weight of Evidence.

It is improper to single out one witness, although he was the family physician, and instruct the jury that his evidence is entitled to great weight.

24. Trial—Instructions.

Where an instruction has already been substantially given, the court is not bound to repeat it.

25. Same—Assumption of Facts.

Where an instruction refers to a disease by a technical name, is confused in its parts, and assumes facts as proved, it is properly refused.

20. Wills—Capacity—Evidence.

It is not necessary for proponents to prove that the testator actually recollected all his property, the objects of his bounty, etc.; it is sufficient if he was, at the time, mentally capable of doing so. ¹

27. Trial—Instructions—Assumption of Pacts.

An instruction was properly refused that assumed that the evidence raised, in the minds of the jury, a doubt of the testator's capacity.

28. Same—Irrelevancy.

An instruction should not be given unless relevant, and it is not relevant unless there was evidence tending to prove the facts on which the instruction is based.

29. Same—Submission of Questions of Pact.

Submitting to the jury, under the statute, "particular questions of fact, " is within the discretion of the trial court. This is a revisable discretion.

30. Same—Special Findings.

The questions must be of such a character that the answers thereto, if contrary to the general verdict, would control the same and be conclusive of the issue. 31. Same.

Under the statute, the court did not err in refusing to submit to the jury the fol-lowing questions: "(1) Was the late Lewis Lunsford, in August, 1880, suffering from a disease known as senile dementia? (2) If so, is that disease curable? (3) Had that disease so far progressed in August, 1882, as to render him (Lewis Lunsford) imbecile and incapable of transacting business? (4) Does a person suffering from such disease have any lucid intervals?"

32. Wills—Probate—Decree.

When a final decree is pronounced in favor of a will on the verdict of a jury rendered on an issue devisavit vel non, the functions of the suit are exhausted, and the bill should be dismissed. In...