Cheatham v. Hatcher

• Decision Date: 21 March 1878
• Citation: 71 Va. 56
• Court: Virginia Supreme Court
• Parties: CHEATHAM v. HATCHER & als.

71 Va. 56

CHEATHAM v. HATCHER & als.

Supreme Court of Appeals of Virginia.

March 21, 1878

1. Where the whole matter of law and fact is submitted to the court below, and its decision is based upon the mere credibilty of the witnesses, it will not be disturbed by the appellate court, unless palpably wrong.

2. But this principle has no application in a case where the decision of the lower court proceeded, not upon the credit to be given to the witnesses, but upon a rule of law supposed by it to be correct, but in fact erroneous.

3. A will must be subscribed, but need not be proven, by two attesting witnesses.

4. The testimony of a subscribing witness invalidating the will which he attested, ought to be viewed with suspicion.

5. The opinion of a physician on a question of sanity, is entitled to peculiar weight, particularly where he had special opportunities of observation.

6. The fact that the draftsman of a will takes a benefit under it while it imposes upon the court the duty of careful scrutiny does not invalidate the will.

7. A request to a witness to subscribe the will, made by a third person in the hearing of the testator, is, in law, the request of the testator, if he is conscious and does not dissent therefrom.

8. In this case the due execution of the will and the sanity of the testatrix was proven by one of the attesting witnesses, whose testimony was confirmed by other witnesses and the circumstances surrounding the transaction. The other subscribing witness, on the other hand, denied the due execution, and the consciousness of the testatrix; but his testimony was impaired by the circumstance that it was in conflict with statements made by him soon after the execution of the will, and was inconsistent with his act in attesting the will--HELD: That the will was duly executed, and should be admitted to probate.

Mrs Ann P. Hall, of Chesterfield, upon her marriage with Edward Hatcher, in February, 1870, conveyed, with his assent, all her estate to a trustee, for her separate and exclusive use with full power to dispose of it, either in her lifetime or by will. She died in August, 1871; and after her death a paper was propounded as her will to the circuit court of Chesterfield for probate. Her heirs and next of kin being many and scattered over the country, it took some years to get all of them before the court; but in May, 1876, the case was ready to be heard, and the parties waiving a jury, submitted the whole matter of law and fact to the court. The paper is signed by Ann P. Hatcher, and is attested by R. P. Grymes and J. M. Clarke. These two and several other witnesses were examined, and the testimony was taken down as it was given in. And the court, for reasons stated in a written opinion, which is made a part of the order, held that the paper propounded was not the will of Ann P. Hatcher, and refused to admit the same to probate. And thereupon Thomas M. Cheatham, the propounder of the will, and the other devisees and legatees mentioned therein, excepted to the opinion and decision of the court, all the evidence being set out in the exception; and obtained an appeal to this court. The case is sufficiently stated in the opinion of Judge Staples.

F. W. Christian, C. C. McRae, for the appellants.

John Hunter, for the appellees.

STAPLES J.

This is a controversy concerning the probate of a paper purporting to be the last will of Mrs. Ann P. Hatcher. The parties in the court below waived a trial by jury and submitted the whole matter to the determination of the judge, who, after hearing all the evidence, was of opinion that " the paper writing in question is not the last will of Ann P. Hatcher," and refused to admit the same to probate. From that order an appeal was taken to this court. The only question in the case we have to determine is, whether the will was subscribed by the witnesses in the presence of the testatrix in the manner required by the statute. Upon this question there is some conflict in the testimony, and if the learned judge of the circuit court had based his decision upon the credit given by him to the witness against the will rather than to those in its favor, this court, upon familiar principles, would not undertake to reverse that decision, unless, indeed, in case of a plain and palpable mistake or error. It is obvious, however, that the learned judge proceeded upon no such ground. His written opinion, which is part of the record, shows that, according to his view, it is necessary to a valid will that every fact relating to the execution of the instrument and the sanity of the testatrix, shall be proved by the two subscribing witnesses.

After citing the statute and a decision of Chancellor Walworth, in Scribner v. Crane, 2 Paige R. 147, he proceeds as follows: " Judge Brooke, in the case of Dudleys v. Dudleys, 3 Leigh 436, reiterated in Clarke and others v. Dunnavant, 10 Leigh 13, 29, says: ‘ that however full the testimony of one witness may be to prove a will, our statute requires two witnesses to the facts which are necessary to be proved.’ Let us, then, apply these principles to the case before us." The learned judge then comments upon the evidence of the two subscribing witnesses--first of Dr. Grymes, and then of Clarke. He declares that they are at points; that Clarke says that he never at any time heard Mrs. Hatcher acknowledge the will; that he did not see her sign or make her mark as a signature; she did not speak while he (Clarke) was in the room, nor is it pretended that she ever spoke afterwards; and, to use his own language, she was in a " dying condition," and her eyes set in death. The learned judge then asks: " Is it necessary, then, that two witnesses should certify to their knowledge of the mental capacity of the testatrix at the time the paper is completed; that it was executed by her freely and understandingly, with a full knowledge of its contents? Surely Clarke could not so testify."

After these explicit avowals, I cannot see how it is possible to avoid the conclusion that the learned judge was of opinion that the two subscribing witnesses must prove the proper execution of the will and the capacity of the testatrix; and his rejection of the will was based upon the absence of such proof in this case. This view is strongly confirmed by the fact that, although there is other testimony in the record besides that of the two subscribing witnesses, bearing directly upon the question of the due execution of the will and the capacity of the testatrix, no allusion is made to that testimony. It is impossible for this court to say what would have been the decision of the circuit judge had he felt himself at liberty to consider the evidence of the other witnesses, or had he been of opinion that a will may be proved by one of the subscribing witnesses only. It is fair to presume that if he had believed that Mrs. Hatcher was unconscious at the time of Clarke's attestation, or had he believed upon the whole evidence that the will was not duly executed, that he would have so declared, instead of confining his view to the testimony of the two subscribing witnesses as affected by the particular rule of law announced by him. At all events, a careful reading of the opinion would satisfy every one that the judge of the circuit court refused the probate, not because he believed the statement of Clarke in preference to the other evidence, but because he held to the idea that the will must be proved, as also the capacity of the testatrix, by the two subscribing witnesses.

I have thus dwelt upon this point because it is necessary to understand precisely the ground upon which the will was rejected in the court below. For all will agree that if that decision was based, not upon the weight and credibility of all the evidence, but upon an erroneous principle announced, with respect to the number of witnesses required to establish a particular fact, the parties have a right to insist that the case shall be reviewed in this court. The farthest this court has gone is to declare that the decision of the trying court for or against the will, is to conclude all mere questions of fact depending upon the credit to be given to the witnesses. Jesse et als. v. Parker's adm'rs, 6 Gratt. 57. The question then arises, Is the construction of the statute correctly given by the learned judge of the circuit court? The opinion of Judge Brooke, in Clarke et als. v. Dunnavant, from which the extract is given, was not concurred in by the two other judges who sat in that case. Judge Parker said: " The law regulating devises requires reasonable proof that every statutory provision has been complied with, but it does not prescribe the mode of proof, nor that the will shall be proved, as well as attested, by two or more credible witnesses, nor that frail memory shall change its nature and perform impossibilities." And this was the view taken by Judge Tucker.

In Pollock and wife v. Glassell, 2 Gratt. 439, 462, Judge Baldwin said: " The statute does not prescribe the number of witnesses by whom a will shall be proved, but the number only by whom it shall be attested. Any one of the subscribing witnesses may prove the execution of the will and its due attestation by himself and the others, and if his testimony be satisfactory, it is sufficient. If this were otherwise, then the proof of a duly attested will might be defeated by the death or forgetfulness of some of the other witnesses." In this part of the opinion I understand all the judges as concurring, including Judge Brooke.

In Jesse v. Parker's adm'rs et als. 6 Gratt 57-64, Judge Allen, delivering the opinion of the whole court, said that, " Although there must be satisfactory proof that every statutory provision has been complied with, in order to...