Couch v. Eastham et al.

• Decision Date: 27 March 1886
• Citation: 27 W.Va. 796
• Parties: Couch v. Eastham et al.
• Court: West Virginia Supreme Court

27 W.Va. 796

Couch

v.Eastham et al.

Supreme Court of Appeals of West Virginia.

Submitted January 25, 1886.

Decided March 27, 1886.

1. Equity has jurisdiction of an issue devisavit vel non to set aside a will, on the ground that it was executed by mistake and therefore is not the true will of the testator, (p. 799.)

2. Upon the trial of an issue devisavit vel non to set aside a will for mistake in the testator in executing it, declarations of the testator made before and after the execution of the will are inadmissible to prove the mistake, (p. 804)

3. The mistake which will avail to set aside a will is the mistake as to what it contains, or in regard to the paper itself, not a mistake either of law or-fact in the mind of the testator as to the effect of what he actually and intentionally did. (p. 805.)

4. When a final decree is pronounced in favor of a will on theverdict of a jury rendered on an issue devisavit vel non, the functions of the suit are exhausted, and the bill should be dismissed. In such suit the construction of the will is not involved, (p. 806.)

Knight $ Coach for appellant.

J. W. English and B. Menager for appellee.

Johnson, President:

Samuel Couch of Mason county made his last will and testament on May 15, 1879. The first clause of the will is as follows: ' "I give and devise unto my son Peter 8. Couch my farm on which I reside in Mason county, West Virginia, containing about 950 acres; but it being my desire to devise the property as nearly equally as may be between my two children, Peter S. Couch and Sarah Frances Eastham, I direct my said sou, Peter S. Couch, to pay his sister, Sarah F. Eastham, the sum of $4,000.00, and I hereby make the said sum of $4,000.00, a lien and charge upon the real estate aforesaid, devised to Peter S. Couch, until the same is paid to said Sarah F, Eastham or her heirs; but in the event that said Peter S. Couch shall die leaving no lawful children surviving him, it is my will and desire that the title to all my real estate aforesaid shall pass to and be vested in my daugh- ter, Sarah Frances Eastham, or her children, if she be not then living, upon the payment by her, or her said children, to said Mary Catharine Couch of the sum of $4,000.00; but in the event that said Mary Catharine Couch shall not then be living, it is my will and desire that said real estate shall pass to and vest in my said daughter, Sarah F. Eastham, or in case of her death to her children without the payment of anything in consideration therefor.''

By the second clause he gave to his daughter all his personal property with some few exceptions, which he disposed of to others.

On September 8, 1880, he executed a codicil to said will, in which he says: "It is my will and desire that the first clause of my said will be and the same is hereby so changed as to read: 'that in the event the said Peter S. Couch shall die leaving no lawful children surviving him, but leave his wife, Mary Catharine Couch, surviving him, it is my will and desire that the title to all my real estate aforesaid, shall pass to and be vested in my daughter, Sarah Frances Eastham, or her children it she be not living, upon the payment by her, or her said children to said Mary Catharine Couch, of the sum of $2,000.00 instead of $4,000.00, as in said will is provided, and it is my wish and desire, and I hereby request my son, Peter S. Couch, to use the timber upon the real estate devised to him, only for the purposes of the farm, and I do earnestly request that none of said timber shall be sold by him, or be sawed into lumber for the purpose of selling as merchandise.''

Samuel Couch died in March, 1884, and his will and codicil were duly admitted to probate.

At August rules, 1884, Peter S. Couch brought his suit in equity to set aside said will, on the ground that it is not the true last will and testament of Samuel Couch, because it was executed in mistake and does not contain the intentions of the testator; that said will shows on its face that it was the intention of the testator to divide his property equally between his children, and the will shows in its bequests manifest inequality. The bill also alleges, that Samuel Couch many times had said, before the will was executed, that he intended to make his children equal in the disposition of his property, and many times after the execution of the will said that he had made them equal by his will; that he valued his farm at $25,000.00 and his personal property at $17,000.00, and intended to give his farm to Peter and the personal property to Sarah, and to charge the farm with $4,000.00 in favor of Sarah, thus giving them $21,000.00 each in property. The bill charges, that Peter's life-estate is not worth $4,000.00, and that his father intended to give him the tee simple in the farm and not a life-estate. The bill prayed for an issue devisavit vel non, and that on the verdict of the jury a decree be entered declaring the said paper-writing not the last will of Samuel Couch deceased, and for partition of his estate between complainant and his sister equally.

The defendant, Sarah F. Eastham, answered the bill, denying that there was any mistake made by her father in the execution of his will.

On September 10, 1884, the court directed an issue devisavit vel non, which was tried in February, 1885, and the jury found that the said paper-writing and every part thereof was the true last will and testament of Samuel Couch, deceased. Thereupon Peter S. Couch by counsel moved the court to set aside the verdict, and to grant him a new trial, which motion the court overruled, and the plaintiff excepted.

The first bill of exceptions contains the will and codicil, the probate, the refusal of the executors named in the will to qualify, and the appointment of an administrator, and the depositions of a uumber of witnesses, who testified mainly to declarations of the testator made before and after the execution of the will, that he intended Peter S. Couch to have the farm, and that he intended to make and had made his two children equal in the disposition ot his property, and the objection of the defendants " to so much of each and all of said depositions as tended to prove the declarations of the testator made by him before and after the date of the execution of the said alleged will and codicil, on the ground that it was not competent to impeach said will by the parol declarations of the testator so made;" and the refusal of the court to permit said declarations to be read to the jury, and the exception of the plaintiff to said action of the court.

The second bill of exceptions contains the proof of the mental capacity of the petitioner by the attesting witnesses, the will and codicil, the probate thereof, the refusal of the executor to qualify and the appointment of an administrator, the proof by the plaintiff that at the time of Samuel Couch's death his personal estate was worth about $12,000.00, that the rental value of the home-place devised to Peter S. Couch was about $700.00 or $800.00 per annum, the landlord paying the taxes, which were about $300.00 per annum, and the proof that the value of the land was about $17,000.00 or $18,000.00.

The court certifies that these were all the material facts before the jury on the issue.

On February 19, 1885, the cause was heard on the pleadings and the verdict of the jury; and the court dismissed the plaintiff's bill with costs, from which decree the plaintiff appealed.

It is insisted by appellant's counsel, that the court erred in rejecting the evidence of the declarations of the testator. He admits that in any suit for the construction of a will parol evidence to explain, vary or contradict the will is inadmissible. This is a proper concession, as the authorities are uniform in support of it and are too numerous to cite. But it is contended, that when the contest is as to the execution of a will, whether there was in fact a will ot the testator executed, then a different rule applies, and any parol evidence on such an issue, including the declarations of the testator both before and after the execution of the will, is admissible. Upon the investigation of this question we will refer only to authorities in cases, where the question was, whether any will had been in fact executed.

It is not controverted in this cause, that upon an issue devisavit re! now the will of a testator or a part thereof may be declared void, for the reason that it was executed by a mistake of the testator. The mere tact, that a paper has been executed with all due formality, does not necessarily constitute it the will of the person so executing it, or preclude the admission ot parol evidence; that it was so executed by mistake and under a misapprehension. (1 Red. on Wills 205.) The question, we are now considering, is: Upon an issue ot will or no will " can the declarations ot the testator made before and after the execution, so far removed therefrom as to form no part of the res gestce, be admitted to prove, that the will was executed by mistake?

Provis v. Reid, 5 Bing. 435, was a writ of entry sur abatement. The demandants claimed as heirs of Henry Sara; the defendant claimed under the will of Sara. The demandants proposed to show that the will was executed in the presence of only two attesting witnesses, and that the name ot a third was added after the death of the testator. The demandants prepared to give evidence of the following among other declarations made by the testator as to the will: "Tom Reid (the defendant) has been trying to get my property, but neither he nor his shall have it. Scott drew up a paper, and they got me to sign it; but never fear, I know that it is not worth to Eeid one farthing." " My land goes to my own family. Peggy (one of the detendants) remember the land is yours. If I don't live to make my will, when I'm dead see that you are righted." The judge rejected the evidence. Best, C. J. said:" It has been insisted, that declarations ot the...