Burton v. Scott

• Decision Date: 16 June 1825
• Citation: 24 Va. 399
• Parties: Burton, & c. v. Scott, & c
• Court: Virginia Supreme Court

24 Va. 399

Burton, & c. v. Scott, & c

Supreme Court of Virginia

June 16, 1825

This was an appeal from the Superior Court of Law for the county of Campbell. It was a question of probate, in which the testator was alledged to have been incompetent to make a will. A great mass of testimony was taken on both sides which is stated with sufficient minuteness in the opinion of Judge Carr. The two following opinions will give a complete view on the subject.

Judgment affirmed.

Johnson for the appellants.

Leigh for the appellees.

Judge Carr. Judge Green. Judges Coalter and Cabell, concurred. The Judges delivered their opinions. ^[*]

OPINION

June 16. The Judges delivered their opinions. ^[*]

JUDGE CARR:

This is a case of probate. In the County Court of Campbell, the two sons of Samuel Scott, who were appointed executors in a paper purporting to be his will, offered it for proof in the usual course. The probate was opposed by his sons-in-law. The Court decided, that at the time of executing the will, the testator was of sound and disposing mind and memory, and under no undue influence. They therefore ordered the writing to be recorded as his last will and testament. An appeal was taken from this decision to the Superior Court of Law for the county. There, after the examination of very many witnesses the judgment of the Court below was affirmed. Upon the correctness of that affirmance, we are now to decide.

In the argument of this cause, the counsel for the appellants made three points. 1. That the testator was incompetent to the making a will. 2. That it was made under undue influence. 3. That the Superior Court erred in excluding evidence of the declarations of the testator's wife, as to his incapacity.

In discussing the competency of the testator, a wide scope was taken, embracing the last twelve years of his life; and I understood the counsel for the appellants to lay it down, as a general rule, that it was incumbent on the devisee claiming under a will, to prove the sanity of the testator: that the onus was upon him, in every question of this sort. Taken in this latitude, I do not consider the position correct. The natural presumption is, that every man is sane and competent to make a will, and this presumption must stand, until destroyed by proof on the other side. To say that insanity must be presumed, until sanity be proved, would seem to be saying that insanity is the natural state of the human mind. In the Attorney General v. Parnther, 3 Brown Ch 441, Lord Thurlow says, " The course of procedure, for the purpose of trying the state of the party's mind, allows of rules. If derangement be alledged, it is clearly incumbent on the party alledging it, to prove such derangement. If such derangement be proved, or be admitted to have existed at any particular period, but a lucid interval be alledged to have prevailed at the period particularly referred to, then the burthen of proof attaches on the party alledging such lucid interval, who must shew sanity and competence at the period when the act was done, and to which the lucid interval refers." This case is referred to by the subsequent Judges and writers, as containing the correct and clear rule on the subject. Thus in White v. Wilson, 13 Ves. 87, Lord Eldon says, " The rule upon this subject of lunacy has never been so distinctly stated, as by Lord Thurlow in the Attorney General v. Parnther, to wit, where a party has ever been subject to a commission, or to any restraint permitted by law, even a domestic restraint, clearly and plainly imposed upon him, in consequence of undisputed insanity, the proof of shewing sanity is thrown upon him. On the other hand, where insanity has not been imputed by relations or friends, or even by common fame, the proof of insanity, which does not appear to have ever existed, is thrown upon the other side, which is not to be made out by rambling through the whole life of the party, but must be applied to the particular date of the transaction." In 9 Ves. 611, it is laid down by the Master of the Rolls, that if general lunacy be established, the opposite party is under the necessity of shewing, that there was a restoration of the faculties of the mind, at the time of the particular act. This certainly seems the rule of reason, as well as law. The remark of Lord Eldon, that a case of insanity is not to be made out by rambling through the whole life of the party, but must be applied to the particular date of the transaction, is unquestionably true as a general position. The same law is very strongly laid down by Lord Camden, in Hinson v. Kersey, 4 Burn's Eccles. Law 88, cited by Phillips, 431. He says, " the great question in such cases is, whether the testator was in his senses when he made the will; and consequently, the time of the execution is the critical moment, which requires guard and protection. What is the employment of the witness? It is to inspect and judge of the testator's sanity, before they attest; and if he is not capable, they ought not to attest. In other cases, the witnesses are passive; here they are active, and the principal parties to the transaction. The testator is entrusted to their care." In the case before us, the three subscribing witnesses testify clearly and explicitly as to the sanity and capacity of the testator; and their characters are not in the slightest degree impeached. But it is said, that this case is an exception to the general rule: that here, the testator, by the visitation of paralysis, was so prostrated, both in body and mind, as to be, unquestionably for a time, incapable of making a will: that the doubt is, whether he ever so far recovered his mind, as to be able to make a valid will; and that to ascertain this, we ought not to select any one moment of time, but to pass in review the whole period, from the paralytic stroke to the date of the will. I think there is much reason in these suggestions; though I cannot agree that the effects of paralysis on the mind, (from Doctor Cabell's account of the disease,) will authorise us to consider this case, as on exactly the same ground with those, where actual derangement, or what the cases call general lunacy, has been established. It is a curious fact, shewing very strongly the uncertainty of evidence depending on mere recollection, that it is a doubtful point on the record, whether the paralytic stroke occurred in 1810 or 1812. My own opinion is, that it was in 1810; and I rest it principally upon the evidence of Doctor Cabell, the attending physician. There are four others who agree with him; Taylor, the overseer, Roy, the nephew of Mrs. Scott, Robert Scott, the testator's nephew, and Chilton. I rely most on Doctor Cabell, for this reason; he was examined first, and testified, that to his best recollection, the stroke was in 1810. When this point was found to be questioned, he recurred to his books, and found the entry of his visit dated the 10th of April, 1810; and he says it was his constant habit to make those entries as soon as he returned from the visit. Here we have something like certainty, something to fix the fact, and test the wavering recollections of faithless memory. There are a good many witnesses, and some facts, tending to contradict this statement; but they are not sufficient to counterbalance it in my mind. But this point, though earnestly discussed in the argument, does not seem to me of importance. Take it that the paralytic stroke was in 1810; then there are many proofs of sanity and capacity, both bodily and mental, in that and the succeeding year; such as the frequent visits of the testator to the court-house; his sitting on the bench in November, 1810, and every month in 1811; his riding about his farm; his purchasing land, and attending to superintend and direct the running of the lines, & c. Adopt the hypothesis that the attack was in 1812, after the testator's qualification as high sheriff; then you admit the will made in 1810, to be above all exception, on the score of capacity or influence, a clear and fair expression of the settled purpose of the testator, as to the disposition of his property at that day; and by a comparison of that will with the last will, you find a striking coincidence--the same general features--the same arrangement of property; --and (with a few variations, growing out of the changes produced by the lapse of ten years,) almost the same provisions in favor of the different devisees and legatees. Indeed, it is remarkable, that in all the four wills produced, the general outlines are pretty much the same; the property generally, to the mother during life; the lands, to the sons; certain slaves, with their share of the residue, to the daughters; and this general plan is further proved to have been the settled purpose of the testator's mind, by Mrs. Ann Scott, Roy, and Chilton, who say that the disposition of his property was always a favorite topic with him, and that in conversations, long before his attack, they have heard him say that he intended his lands for his sons, and the money for his daughters. But leaving these general remarks, let us descend to a more particular examination of the evidence, touching the capacity of the testator, during the time...