Cale v. Napier

• Decision Date: 01 May 1987
• Citation: 186 W.Va. 244,412 S.E.2d 242
• Court: West Virginia Supreme Court
• Parties: Charles H. CALE, Okey P. Cale, Patricia A. McLaughlin, Robert L. Cale, Wilma Elder, and William F. Cale, Plaintiffs Below, Appellants, v. Sara E. NAPIER, Floyd J. Cale, Ada I. Morrison, Robert B. Blake, Executor of the Estate of Dora E. Cale, and Commercial Banking and Trust Company, as Executor of the Estate of Dora E. Cale, Under the Last Will and Testament of Dora E. Cale dated

Page 242

412 S.E.2d 242

186 W.Va. 244

Charles H. CALE, Okey P. Cale, Patricia A. McLaughlin Robert L. Cale, Wilma Elder, and William F. Cale Plaintiffs Below, Appellants, v. Sara E. NAPIER, Floyd J. Cale, Ada I. Morrison, Robert B Blake, Executor of the Estate of Dora E. Cale, and Commercial Banking and Trust Company, as Executor of the Estate of Dora E. Cale, Under the Last Will and Testament of Dora E. Cale dated May 1, 1987, Defendants Below, Appellees.

No. 20000.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 17, 1991.

Decided Dec. 6, 1991.

Syllabus by the Court

1. " ' "Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence. Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85 [163 S.E. 767 (1932) ]." ' Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250 (1957)." Syllabus Point 1, Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978).

2. "Undue influence cannot be based on suspicion, possibility or guess that such undue influence had been exercised, but must be proved and the burden of proof of such issue rests on the party alleging it." Syllabus Point 7, Floyd v. Floyd, 148 W.Va. 183, 133 S.E.2d 726 (1963).

3. "Undue influence which will invalidate a will is never presumed but must be established by proof which, however, may be either direct or circumstantial." Syllabus Point 15, Ritz v. Kingdon, 139 W.Va. 189, 79 S.E.2d 123 (1953), overruled on other grounds, State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955).

4. Advanced age or physical or mental infirmities of the testator can be shown to establish that undue influence was exerted.

5. In a will contest on a charge of undue influence, evidence is admissible to show that the testator had previously either expressed an intention to make a contrary disposition of the property or had a prior will which made a disposition contrary to that of the contested will.

6. "To summarize the basic operation of the Dead Man's Act, W.Va.Code, 57-3-1, a concurrence of three general conditions must be met in order to bar the witness's testimony. First, the testimony must relate to a personal transaction with a deceased or insane person. Second, the witness must be a party to the suit or interested in its event or outcome. Third, the testimony must be against the deceased's personal representative, heir at law, or beneficiaries or the assignee or committee of an insane person." Syllabus Point 10, Moore v. Goode, 180 W.Va. 78, 375 S.E.2d 549 (1988).

7. "A party to a civil action may testify as a witness in regard to a personal transaction or communication between such witness and a person who is deceased at the time such testimony is given without violating the provisions of Code, 1931, 57-3-1, as amended, if the testimony thus given is against the interest of the party so testifying as a witness." Syllabus Point 2, Holland v. Joyce, 155 W.Va. 535, 185 S.E.2d 505 (1971).

8. Under W.Va.Code, 57-3-1 (1937), a witness in a civil action may testify about a personal transaction with the decedent so long as the testimony is adverse to the witness's pecuniary interest. It is not necessary that the witness's testimony would result in completely extinguishing his pecuniary interest. It is sufficient if the testimony adversely affects the pecuniary interest to the point that a reasonable person would not have made the statements unless he or she believed them to be true.

James M. Bradley, Jr., Albright, Bradley & Ellison, Parkersburg, for appellants.

J. Michael Weber, Davis, Bailey, Pfalzgraf & Hall, Parkersburg, for appellees Sara E. Napier, Floyd J. Cale, Ada I. Morrison, Robert B. Blake, Executor of the Estate of Dora E. Cale.

MILLER, Chief Justice:

Charles H. Cale, Okey P. Cale, Patricia A. McLaughlin, Robert L. Cale, Wilma Elder, and William F. Cale, plaintiffs below, appeal a final order of the Circuit Court of Wood County, dated April 20, 1990, denying their motion for a new trial. The plaintiffs contend that the trial court erred in directing a verdict in favor of Sara E. Napier, Floyd J. Cale, Ada I. Morrison, Robert B. Black, and Commercial Banking and Trust Company at the close of the plaintiffs' case-in-chief. We agree; therefore, we reverse the judgment of the circuit court and remand for further proceedings consistent with this opinion.

I.

William I. Cale died on July 31, 1987, at the age of ninety-one. His wife, Dora E. Cale, died seven months later at the age of eighty-eight. The Cales were survived by nine children, all of whom are parties to this litigation.

In early 1987, the Cales contacted an attorney regarding some legal work. Among other services, the Cales wanted the attorney to review the wills that they had previously prepared because they were not exactly sure how they had distributed their property.

After reviewing the wills, the attorney explained to the elderly couple that they had devised all of their assets to four of their children and had excluded the remaining five. ¹ After learning of this disposition, Mrs. Cale responded: "That isn't right. I love all my children equally and all my children should be treated equally." Accordingly, the Cales directed the attorney to draft two new wills in which, upon the death of both of them, the property would be distributed equally among all of their children. The new wills were signed on May 1, 1987.

Three months later, an unidentified male called the Cales' attorney at his office and told him: "Someone wants to talk to you." Mrs. Cale then got on the telephone and told the attorney that her husband had had a stroke. Moreover, she informed him that his services were no longer needed and asked him to send her a bill. Four days later, Mr. Cale died.

Shortly thereafter, Mrs. Cale moved in with Sara and Nick Napier, her daughter and son-in-law. She left their home on only two occasions prior to her death. On one such occasion, she went to sign a new will, dated October 7, 1987, in which she gave the five plaintiffs $500 each, gave the defendant Floyd L. Cale a 96-acre farm, and distributed the bulk of the remaining property equally among the four other children who are also defendants. She named the attorney who drafted the will as the executor of her estate. Mrs. Cale died in March of 1988, and her estate was appraised at approximately $158,000.

On April 18, 1988, the plaintiffs filed suit in the Circuit Court of Wood County, contending that Mrs. Cales' third will was null and void because it was obtained under undue influence. At the close of the plaintiffs' case-in-chief, the trial court directed a verdict for the defendants. The plaintiffs appeal.

II.

The standard of appellate review for directed verdicts is set forth in Syllabus Point 1 of Jividen v. Legg, 161 W.Va. 769, 245 S.E.2d 835 (1978):

" ' "Upon a motion to direct a verdict for the defendant, every reasonable and legitimate inference fairly arising from the testimony, when considered in its entirety, must be indulged in favorably to plaintiff; and the court must assume as true those facts which the jury may properly find under the evidence. Syllabus, Nichols v. Raleigh-Wyoming Coal Co., 112 W.Va. 85 [163 S.E. 767 (1932) ]." ' Point 1, Syllabus, Jenkins v. Chatterton, 143 W.Va. 250 (1957)."

See also Hess v. Arbogast, 180 W.Va. 319, 376 S.E.2d 333 (1988). Thus, under this standard, we construe the evidence in the light most favorable to the plaintiffs.

III.

In Syllabus Point 7 of Floyd v. Floyd, 148 W.Va. 183, 133 S.E.2d 726 (1963), we explained:

"Undue influence cannot be based on suspicion, possibility or guess that such undue influence had been exercised, but must be proved and the burden of proof of such issue rests on the party alleging it."

See also Frye v. Norton, 148 W.Va. 500, 135 S.E.2d 603 (1964); Ritz v. Kingdon, 139 W.Va. 189, 79 S.E.2d 123 (1953), overruled on other grounds, State v. Bragg, 140 W.Va. 585, 87 S.E.2d 689 (1955). Although mere speculation will not sustain the plaintiffs' burden of proof, both direct and circumstantial evidence can be used, as we stated in Syllabus Point 15 of Ritz v. Kingdon, supra:

"Undue influence which will invalidate a will is never presumed but must be established by proof which, however, may be either direct or circumstantial."

See also Frye v. Norton, supra.

The plaintiffs' evidence established that Mrs. Cale was very old and weak when she executed the will. In Ebert v. Ebert, 120 W.Va. 722, 734, 200 S.E. 831, 837 (1938), we held that advanced age or physical or mental infirmities of the testator can be shown to establish that undue influence was exerted: "[I]t does not require authority to sustain the proposition that such influence is more easily shown to exist in cases where advanced age, physical or mental weakness is involved." Other jurisdictions are in accord. See, e.g., In re Van Aken's Estate, 281 So.2d 917 (Fla.App.1973); Schmidt v. Schwear, 98 Ill.App.3d 336, 53 Ill.Dec. 766, 424 N.E.2d 401 (1981); Matter of Will of Adams, 529 So.2d 611 (Miss.1988); Neal v. Caldwell, 326 Mo. 1146, 34 S.W.2d 104 (1930); In re Estate of Novak, 235 Neb. 939, 458 N.W.2d 221 (1990); Matter of Estate of Gonzales, 108 N.M. 583, 775 P.2d 1300 (1988), cert. quashed, 108 N.M. 197, 769 P.2d 731 (1989); Griffin v. Baucom, 74 N.C.App. 282, 328 S.E.2d 38, review denied, 314 N.C. 115, 332 S.E.2d 481 (1985); Taliaferro v. Green, 622 S.W.2d 829 (Tenn.App.1981); Redford v. Booker, 166 Va. 561, 185 S.E. 879 (1936). See generally 79 Am.Jur.2d Wills § 434 (1975 & Supp.1991).

The plaintiffs also introduced the testimony of Mrs. Cale's treating physician Matthew Godlewski, M.D., who testified that he saw Mrs. Cale before and after she executed the October 7, 1987 will. The doctor observed that Mrs. Cale "was very...