Core v. Core's Adm'rs

• Decision Date: 12 June 1924
• Court: Virginia Supreme Court
• Parties: CORE et al. v. CORE'S ADM'RS et al.

124 S.E. 453

CORE et al.

v.CORE'S ADM'RS et al.

Supreme Court of Appeals of Virginia.

June 12, 1924.

Rehearing Denied Sept. 17, 1924.

Sims, P., dissenting.

Error to Circuit Court, Northampton County.

Proceeding by J. T. Core and another against J. C. Core's administrators and others to test the validity of an instrument admitted to probate as the last will and testament of J. C. Core, deceased. Decree upholding will, and contestants bring error. Affirmed.

A. W. Patterson, of Richmond, Otho F. Mears, of Eastville, and S. James Turlington, of Accomac, for plaintiffs in error.

Old & Brockenbrough and Jas. G. Martin & Bro., all of Norfolk, and John E. Nottingham, of Franktown, for defendants in error.

PRENTIS, J. The plaintiffs in error, who are among the heirs at law of their uncle, James C. Core, deceased, complain of a verdict and judgment in a statutory proceeding to test the validity of a paper writing which had been admitted to probate as the last will and testament of the said James C. Core, deceased, by the clerk of the circuit court of Northampton county. The case has been elaborately argued and many precedents have been cited, but it presents no new question. A careful analysis of the record shows that there are but two debatable questions —one a question of law, and the other a question of fact.

1. The question of law was raised by exceptions to the exclusion of testimony, as well as by instructions given and refused. A recital of some of the circumstances is necessary in order to understand this issue.

The decedent, who was between 78 and 80 years of age, had in his later years and specifically, as the sole beneficiary under bis sister's will, become the owner of a large estate. He was unmarried, and after his sister's death lived at his home in the country, without the care of any near relative. He was penurious, and lived without many comforts which his means should have enabled him to secure. He had one brother, William T. Core, who was 7 or 8 years older than himself, and his other nearest relatives were three nieces, who were daughters of his brother, two of whom were married and one unmarried, and two nephews, sons of Bovee D. Core, a deceased brother, who are the plaintiffs in error. The will is in his own handwriting, dated September 2, 1920, and he died about 14 months thereafter, November 6, 1921.

This will reads:

"I James C. Core do here by make this my last will and Testmt. I leve to my neice Mollie A. Core twelve thousand dollars To my niece Juliet Core Bianchard five thousand dollars

To my niece Grace Core Pegues five thousan dollars

To my nephew Christopher Walthal Core five

thousand dollars.

My nephew John Thomas Core five thousand

dollars.

To my nephew Dr. William Core Duffy five thousand dollars

To nephew John Core Duffy five thousand dollars.

To my great niece Marie Core Duffy two thousand dollars

To my cousin Margaret Duncan Scott one

thousand dollars

To my cousin Emma Duncan Powel one thousand dollars To my aousin Corda Duncan Rowley one thousand dollars.

To my Lower Northampton Baptist Church one thousand dollars

The balance of my estate both real and personal to my brother

William T. Core after all my just debts are paid.

and funeral expenses are paid.

This is my last will and testament written by

my own hand this day September 2nd 1920.

"James C. Core

"Northampton Co. Va."

The contestants allege that the testator was without testamentary capacity, claiming that at the time it was written he.was in the last stages of progressive senility, and that it was induced by the fraud and undue influence of his brother, William T. Core, and his niece, Mollie A. Core.

In support of the contention that the will had been so procured by fraud and undue influence of his brother, William T. Core (Tom Core), aided and abetted by his daughter Mollie A. Core, the contestants several times undertook to introduce the declarations of the testator as tending to show such fraud and undue influence. Examples of this are found in several certificates of exceptions. The witness Hamilton was asked:

"Did you hear Mr. James C. Core, at the time you were there in July, 1920, make a statement about his brother, Tom Core?"

The court, upon objection by the proponents, refused to allow the question to be answered, to which ruling the contestants excepted, and stated that the answer expected was that:

"He had heard James C. Core say that his brother, Tom Core, had been trying to get him to make a will and cut his brother Bovee's children out, and that he didn't want to do it, and didn't think it was right, and Brother Tom Core was all the time after him about his money; he worried him to death; his visits were no pleasure to him, because he was nagging at him about money all the time."

This question was propounded to the witness Cbarnock:

"In the year 1920, did you hear him say anything about his brother, Tom Core?"

Upon an adverse ruling by the court, it was stated that the answer expected was:

"That he told witness that Brother Tom had been over there and got him to will a lot of his property to him and his folks, but he had some left. The brother Tom referred to was his brother, William T. Core, who lived in Norfolk."

The court disallowed this question, propounded to the witness Robert Jones:

"Did he say anything about Mr. Tom Core, his brother?"

The answer expected was:

"That he wanted to divide his property equally between Bovee's children and his other relatives, but his brother, Tom Core, wouldn't let him do it, and persuaded him not to do it, and kept on insisting on him not doing it."

The witness R. L. Travis was also offered to prove similar declarations amplified and in greater detail.

The court very clearly indicated its view as to this class of evidence, and in certificate of exception No. 4, referring to certain similar testimony of the witness C. F. Wilson, it is thus expressed:

"The Court: The ruling of the court is that so much of the testimony as purports to relate to declarations made by the deceased as to efforts of his brother to induce him or persuade him to make a will in the manner that he desired will be excluded. The other portion of the testimony will be admitted."

Then and repeatedly during the trial it was made plain that the court would admit all testimony tending to show testamentary incapacity, intention, and mental attitude towards all of his relations, and a mass of such evidence was admitted.

These exceptions present a question which has been much debated, and a full discussion would require an elaborate review of the authorities. This, however, has beeu so often and so well done by others that it is unnecessary to do more than to state the rule which is applied in this jurisdiction, and to show that this accords with the prevailing view.

In Wallen v. Wallen, 107 Va. 131, 57 S. E. 596, the question was clearly presented, and it is there held that:

"Declarations of the testator, not made contemporaneously with the execution of his will, are relevant evidence to show his feelings, his affections toward the natural objects of his bounty, his mental condition, as reflecting upon his testamentary capacity, but are not admissible to establish the substantive fact of undue influence."

There is a discriminating discussion of the subject in 3 Wigmore on Evidence (2d Ed.). As illustrating this prevailing rule, it is in section 1738 said:

"The testator's assertion that a person named, or unnamed, has procured him by fraud or by pressure to execute a will, or to insert a provision, is plainly obnoxious to the hearsay rule, if offered as evidence that the fact asserted did occur."

In Shailer v. Bumstead, 99 Mass. 122, it is said of such declarations that by the better reason and most authoritative discussions they are not admissible to establish the fact of fraud and undue influence as one of the constituent elements of the issue.

"When used for such purpose, they are mere "Evidence of hearsay, which by reason of the death of the party whose statements are so offered, can never be explained or contradicted by him. Obtained it may be by deception or persuasion, and always liable to the infirmities of human recollection, their admission for such purpose would go far to destroy the security which it is essential to preserve."

In that case it is held, therefore, that they are thus inadmissible, so far as they form— "a declaration or narrative to show the fact of fraud or undue influence at a previous period."

Mr. Wigmore cites many cases to establish the fact that by most courts such declarations are regarded as inadmissible.

The distinction between what is admissible to show mental capacity of the testator, and statements made by him offered to show the substantive fact of undue influence, is in practice sometimes exceedingly difficult to apply. This is well illustrated by this language from Rusling v. Rusling, 36 N. J. Eq. 607 (in which such declarations were excluded):

"When undue influence is set up in impeachment of a will, the ground of invalidity to be established is that the conduct of others has so operated upon the testator's mind as to constrain him to execute an instrument to which, of his free will, he would not have assented. This involves two things: First, the conduct of those by whom the influence is said to have been exerted; second, the mental state of the testator, as produced by such conduct, which may require a disclosure of the strength of mind of the decedent and his testamentary purposes, both immediately before the conduct complained of, and while subjected to its influence. In order to show the testator's mental state at any given time, his declarations at that time are competent, because the conditions of the mind are revealed to us only by its external manifestations, of which speech is one. Likewise, the state of the mind at one time is competent evidence of its state at other times not too remote, because mental conditions have some degree of...