Canterberry v. Canterberry
| Decision Date | 21 June 1938 |
| Docket Number | 8717. |
| Parties | CANTERBERRY v. CANTERBERRY et al. |
| Court | West Virginia Supreme Court |
Submitted May 17, 1938.
Syllabus by the Court.
1. Where an issue is raised as to who mutilated a will, a mere showing of an opportunity on the part of a person who would benefit by its destruction does not of itself establish that such person actually mutilated it.
2. The rule that the issues of fact in a law action are withdrawn from the jury where both parties move for a directed verdict is inapplicable in the courts of this State.
3. In a suit to impeach a will, the burden of proving its execution rests upon the proponent. Upon the will having been established, however, the burden of proving its revocation devolves upon the contestant.
4. Under Code 1931, 41-1-7, the destruction of a testator's signature to a will, by the testator himself or by some person in his presence and by his direction with intent to revoke, constitutes a revocation.
5. Where a will, in the testator's possession at the time of death, was found thereafter with the signature cut off, there is a rebuttable presumption that the testator excised the signature with the intention of revoking the will.
6. Where, on an issue devisavit vel non, a will is found with the signature excised and the evidence is such that a jury may reasonably infer either that the will was in testator's possession at the time of his death, or that it was not, the question is one for the jury.
Appeal from Circuit Court, Kanawha County.
Suit by E. O. Canterberry against M. O. Canterberry and another to impeach an instrument which had been admitted to probate as the last will and testament of plaintiff's deceased father. From an adverse decree, the plaintiff appeals.
Decree reversed, and case remanded for further proceedings.
Koontz & Hurlbutt, W. Elliott Nefflen and W. W. Goldsmith, all of Charleston, for appellant.
H. W B. Mullins, of Madison, and Taylor & Taylor, of Charleston for appellees.
E. O Canterberry brought this suit against his brother, M. O. Canterberry, and his mother, Clara A. Canterberry, in her own right and as executrix of the will of G. F. Canterberry, deceased, to impeach a paper writing, which, some years previous, had been admitted to probate by the county court of Kanawha County as the last will and testament of the decedent, plaintiff's father, and praying for an issue devisavit vel non out of chancery. From a decree, based upon a directed verdict, adjudicating the paper writing as the true last will and testament of decedent, the plaintiff obtained this appeal.
This Court, on certificate, held that the suit had been brought within due time after the probate of the will, and that the allegations of the bill of complaint were sufficient to raise an issue as to the execution of the paper writing as decedent's last will and testament. Canterberry v. Canterberry et al., 118 W.Va. 182, 189 S.E. 139.
The will bequeathed to the plaintiff, E. O. Canterberry, the sum of $50; to the defendant, M. O. Canterberry, one-half of a certain storehouse and lot in the Town of Marmet, Kanawha County; and devised and bequeathed to the defendant, Clara A. Canterberry, the residuum of the estate. Clara A. Canterberry had in her own right the other one-half interest in the lot at Marmet.
The bill of complaint alleges that the paper writing is not decedent's last will and testament, and that it bears neither his signature nor seal. Exhibited with the bill is a photostatic copy of the alleged will. In the answer the material allegations of the bill of complaint are denied.
The paper writing was prepared on October 14, 1929, by an attorney at law. It consisted of two typewritten sheets of paper, the first sheet containing the body of the will, after which, near the bottom of the page, the language "In Witness Whereof: I have hereunto set my hand and seal this the 14th day of October, 1929" appears; and the second, an attestation clause for the witnesses with lines for their signatures. From the evidence it seems clear that the decedent signed his name on the first page on a line provided for his signature, to the right of which the word "seal" had been typewritten, and that he then signed his name on the second sheet, along the left-hand margin opposite and at right angles to the attestation clause, which clause was immediately followed by the signatures of the two witnesses who were present at the time the alleged will was executed. The evidence is equally clear that when this paper was offered for probate in the county clerk's office, a rectangular strip had been cut off from the right-hand corner of its first sheet, where the signature and seal of the testator were originally, so that the only place Canterberry's signature appeared was on the margin of the second page. The attorney explained that the signature was affixed to the second page simply for the purpose of connecting the two pages together.
Immediately after its execution, the paper was placed in an envelope by the attorney and delivered to Canterberry. From this time until June, 1930, the whereabouts of the will thus sealed in the envelope does not appear. Some time in the latter part of June, 1930, Mrs. Canterberry saw and read the will. She saw the will on other occasions, the last time being shortly before her husband's death.
According to the record, Mrs. Canterberry, some time before her husband's death, had placed the will, along with other papers belonging to him, in a paper bag and placed the bag between the mattress and springs of the bed which she and her husband occupied. This bed was occupied by her husband during his last illness, until he was taken to the hospital. He remained in the hospital only a short time, having died the day following the evening he arrived.
Mrs. Canterberry was unable to remember the date on which she first noticed the mutilation of the will. However, on October 30, 1930, when she produced the will at the clerk's office for probate, the rectangular strip heretofore referred to was missing.
It appears from Mrs. Canterberry's testimony that she swept the room the day after the funeral; that thereafter while sweeping the room again, she found on the floor a slip of paper with her husband's signature and the word "seal" thereon; that between the time she found the paper and the occasion of the first sweeping, the plaintiff, E. O. Canterberry, slept in the room, and, on that occasion, was in the room alone while she prepared breakfast. Plaintiff, on the other hand, testified that he did not recall having slept in the room, but he did not deny his mother's testimony. However, he testified that he did not learn of a will until about a week after the funeral and did not see the paper writing in controversy until it became lodged in the county clerk's office subsequent to probate. In this regard, he is not controverted. Though it was to his interest to have the will destroyed, his testimony must be taken as true. The mere opportunity to mutilate the will is not evidence that he actually did it. We cannot say that the plaintiff, by the mere opportunity to commit a criminal act, can be charged with it. In fact, the presumption is the other way. 1 Page on Wills, 2d Ed., sec. 776, p. 1322; Holler v. Holler, 298 Ill. 418, 131 N.E. 663.
The defendants (proponents), after the introduction of their evidence, were permitted over objection to amend the answer, setting out that after the will was probated, Clara A. Canterberry, as executrix, paid to the plaintiff the $50 legacy provided for in the will, and that plaintiff, by acceptance thereof, was thereby estopped to deny its validity. Plaintiff testified that he had not been paid as charged in the answer.
At the close of the evidence, plaintiff's counsel moved for a directed verdict, which motion was overruled. Thereupon, said counsel moved for an exclusion of all evidence except that the issue whether Mrs. Canterberry paid the $50 legacy be submitted to the jury. Likewise, this motion was overruled. Defendants' counsel then moved for a directed verdict, which motion was granted, and a verdict in defendants' favor was rendered at the court's direction.
It becomes pertinent at the outset to review the last mentioned proceedings, which occurred immediately after the close of the testimony. Defendants' counsel contend that a motion for a directed verdict is an admission that the record discloses no question of fact, so that, when both parties make such motions, the case is automatically taken away from the jury and all questions, both of law and fact, are placed in the hands of the court for solution (citing Abbott's Civil Jury Trials, 5th Ed., p. 740, sec. 338).
On this question the American authorities conflict. See, generally 18 A.L.R. 1433; 69 A.L.R. 633; 26 R.C.L. 1080, sec. 83. The cases are legion. A majority of them seems to support defendants' position. A few will suffice: Electrical Products Consolidated v. El Campo, Inc., 105 Mont. 386, 73 P.2d 199; Burke Grain Co. v. St. Paul-Mercury Indemnity Co., 8 Cir., 94 F.2d 458; Aetna Ins. Co. v. Kennedy to Use of Bogash, 301 U.S. 389, 57 S.Ct. 809, 81 L.Ed. 1177; Atlas Realty Co. v. Rowray, Wyo., 65 P.2d 1122; Enelow v. New York Life Ins. Co., 3 Cir., 83 F.2d 550, 105 A.L.R. 493, certiorari denied 298 U.S. 680, 56 S.Ct. 948, 80 L.Ed. 1401; Fourth Nat. Bank of Montgomery v. Portsmouth Cotton Oil Refining Corporation, 5 Cir., 284 F. 718, affirming D.C., 280 F. 879; Orr v. Waldorf-Astoria Hotel Co., 8 Cir., 291 F. 343; Gertner v. Glens Falls Ins. Co., 193 A.D. 836, 184 N.Y.S. 669, affirmed 233 N.Y. 568, 135 N.E. 921. Contra see: Laurens Glass Works v. Childs, 49 Ga.App. 590, 176 S.E. 665; Holliday v. Atlantic Coast...
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