Ex&r v. Whitelaw

• Decision Date: 17 March 1887
• Citation: 1 S.E. 407,83 Va. 40
• Court: Virginia Supreme Court
• Parties: Whitelaw's Ex'r and others v. Whitelaw and others.

1 S.E. 407

(83 Va. 40)

Whitelaw's Ex'r and others

v.Whitelaw and others.

Supreme Court of Appeals of Virginia.

March 17, 1887

New Trial—Improper Remarks of Court to Jury.

In a suit in equity to set aside a will, after the argument was closed, and the issue given to the jury, the court, upon its own motion, read an address to the jury on the theory that they were unevenly divided in sentiment, in which he advised them to compromise their views, and yield something in deference to the opinions of others, especially when those differing were in the majority in numbers; saying that the burden of proof was on the plaintiffs in the issue; that, if the evidence was evenly balanced, they should find against the will; that, in considering the mass of conflicting evidence in the case, it was not surprising that there should be a difference of opinion, etc.; and concluded by telling them to do their duty, and leave the rest to him. Held an unwarrantable interference with the p'rovince of the jury, and ground for a new trial.

John D. Horsley and J. G. Field, for appellants.

F. S. Martin and A. R. Blakey, for appellees.

Lacy, J. This is an appeal from a decree of the circuit court of Orange county, rendered at the July term, 1886. The cause is as follows: Mary Whitelaw, of said county, executed her will on the eighth day of December, 1874, which was probated on the twenty-second of February, 1875. H. A. Sims, the executor named in the will, qualified as such at that term. The will gave to the son of the testatrix, Benjamin B. Whitelaw, $50. To her daughter Elisabeth C. Yager all that portion of her estate which the testatrix should receive from the estate of her son Isaac D. Whitelaw. To her said daughter Elisabeth C. Yager she loaned all the rest of her estate of every kind, both real and personal, during her life, at her death to be equally divided between her grandchildren Pamelia W. Sims and Willie A. Wiseman, share and share alike, these two being the daughters of the said Elizabeth C. Yager; and appointed the said H. A. Sims, the husband of the said Pamelia W. Sims, her executor. In July, 1879, the said son, Benjamin R. Whitelaw, filed his bill to set aside the said will, upon the ground that the said testatrix was not mentally capable of making any testamentary disposition of the property at the date of the will, and that the execution of said will was procured unlawfully, by undue and unwarrantable means and influences operating upon an enfeebled and imbecile mind, employedchiefly by the said H. A. Sims. The son, Benjamin B. Whitelaw, and Elizabeth C. Yager, the daughter, now Mrs. Carpenter, having agreed together to set aside the wili, Mrs. Carpenter being at variance with her son-in-law, the said H. A. Sims, an issue was framed, and the case tried, and a verdict rendered against the validity of the will, and the court decreed accordingly. From this decree the appellants, H. A. Sims and others, appealed.

The first error assigned here is that on the day after the argument was closed, and the issue given to the jury for their consideration, the court, upon its own motion, read an address to the jury. This address is apparently based upon the idea that the jury was unevenly divided in sentiment on the issue, and is a lengthy homily upon the duty of jurors to compromise their views, and yield something in deference to the opinion of others, especially when those differing were in the majority in number; that the burden of proof was on the plaintiffs to the issue; if the evidence was evenly balanced, they should find against the will; that, in considering the mass of conflicting evidence in the case, it was not surprising that there should be a difference of opinion, saying: "Under the particular circumstances of this case, you should be disposed to yield something in deference to the opinions of others, and especially should you do so when those differing from you exceed in numbers, other things being even;" that an honest purpose to agree excluded all self-will and obstinacy of purpose; that the...