Crigler v. Lukens

• Decision Date: 06 December 1938
• Docket Number: 8691.
• Citation: Crigler v. Lukens, 120 W. Va. 695, 200 S.E. 60 (W. Va. 1938)
• Parties: CRIGLER et al. v. LUKENS et al.
• Court: West Virginia Supreme Court

200 S.E. 60

120 W.Va. 695

CRIGLER et al. v. LUKENS et al.

No. 8691.

Supreme Court of Appeals of West Virginia.

December 6, 1938

Submitted October 4, 1938.

Syllabus by the Court.

A case where four judges sitting, and being equally divided on how it should be decided, the decree of the trial court is affirmed.

Appeal from Circuit Court, Randolph County.

Suit by William Crigler and others against Sallie T. Lukens and others to establish a will alleged to have been executed by C. Ed Lukens, deceased, and which allegedly was lost suppressed, or destroyed after the death of C. Ed Lukens deceased.From a decree establishing the last will and testament of C. Ed Lukens as alleged in plaintiffs' bill the named defendant appeals.

Affirmed by a divided court.

H. G. Kump, of Charleston, and B. M. Hoover, of Elkins, for appellant.

E. L. Maxwell, of Elkins, H. G. Muntzing, of Moorefield, M. S. Hodges, of Franklin, Frank Lively, of Charleston, Max Schoenberg, of Chicago, Ill., and C. C. Wise, of Charleston, for appellees.

FOX Judge.

In this caseJudge MAXWELL, for reasons satisfactory to himself and his associates, is of the opinion that it would be improper for him to act, and the court, as constituted in his absence, being equally divided on the decisive questions raised on the record, this opinion is written to represent the views of Judges HATCHER and FOX thereon.

Sallie T. Lukens appeals from a decree of the Circuit Court of Randolph County, entered on the 8th day of July, 1937, in a suit in equity in which William Crigler and Macie Bennett Brake were plaintiffs, and Sallie T. Lukens and others, defendants.

The suit was one to establish a will alleged to have been executed by C. Ed Lukens on the 5th day of August, 1936, and which, it is averred in the bill, was lost, suppressed or destroyed after the death of the testator.The bill was filed at January Rules, 1937, naming Sallie T. Lukens, widow, John Anderson, James B. Baker and Bruce Pritt, administrators of the estate of C. Ed Lukens, John Lukens and other interested parties as defendants.John Lukens filed his answer in term neither admitting nor denying the allegations of the bill, but calling for full proof thereof; Sallie T. Lukens filed her answer averring that she had no personal knowledge of the execution of the will sought to be established, and denying the allegations of the bill with respect thereto; and the administrators filed their joint answer denying any personal knowledge of the execution of the alleged will, and calling for full proof thereof.These answers were all filed prior to any decree in the cause.

Depositions were taken on behalf of the plaintiffs tending to show the due execution of the will, as alleged, and the existence thereof at the date of the death of C. Ed Lukens.On April 5, 1937, the cause was heard upon the bill, answers filed, and the depositions aforesaid, and a decree entered by which the court found:

"Upon consideration whereof, the Court is of opinion that C. Ed Lukens on the 5th day of August, 1936, made, signed and acknowledged a written will as and for his last will and testament, as charged in plaintiff's Bill of Complaint and in their depositions proven; and the Court is further of opinion, as charged in the Bill of Complaint and by the depositions on behalf of the plaintiffs proven, that said will made, signed and acknowledged on August 5th, 1936, by the said C. Ed Lukens, has been revoked, lost, suppressed or destroyed.All of which is accordingly adjudged, ordered and decreed."

The court then proceeded to determine the contents of the will, the execution of which it had found as a fact, using a carbon copy thereof as the basis of its finding, and setting out the same in extenso; and upon motion of the plaintiffs, resisted by Sallie T. Lukens, further decreed:

"That an issue be, and the same is hereby directed, to be tried before a jury at the bar of this Court, to ascertain whether any, and if any, how much, of the paper writing aforesaid purporting to bear date on the 5th day of August, 1936, the contents of which are hereinbefore ascertained, and which purports to be the will of C. Ed Lukens, deceased, and which has been revoked, lost, suppressed or destroyed, is the will of the said C. Ed Lukens, deceased."

In submitting the issue, the court provided that the bill and answers might be read to the jury, not as evidence, but merely to define the scope of the issue.

The case was tried by a jury and the following verdict returned:

"We, the jury, find that the Will made and executed by C. Ed Lukens on the 5th day of August, 1936, and each part thereof, is the last Will and Testament of the said C. Ed Lukens, deceased."

A motion to set aside the verdict of the jury was overruled, and exceptions to such action saved on the record, and on July 8, 1937, the court entered a decree establishing the last will and testament of the said C. Ed Lukens as alleged in the bill of the plaintiffs.From this decree, Sallie T. Lukens appeals.

In the trial of the issue of devisavit vel non the plaintiffs introduced all of their available testimony on the question of the actual execution of the alleged will of August 5, 1936, as well as the testimony tending to show that the said will was in existence at the date of the death of the testator; they also introduced evidence tending to show opportunities on the part of Sallie T. Lukens, John Anderson and others to destroy or suppress the will.They attempted to make out a full and complete case before the jury, not only as to the execution of the will, but its continued existence to the date of the death of the testator, and that it was suppressed or destroyed by parties whose interests would be served thereby.After the completion of all testimony on behalf of the plaintiffs, they offered the decree of April 5, 1937, as evidence of a fact found by the court, which was so admitted over the objection of the defendantSallie T. Lukens, and an exception taken.Following this, the court by instructions 2, 3, 8, 9, and 12, offered by the plaintiffs, told the jury that the execution of the will of August 5, 1936, had been established as a fact by the court, thus, in effect, taking from the jury all power to pass upon the testimony bearing upon that question.The admission of the decree as a finding of fact by the court, and the giving of the several instructions furnishing added weight to this decree, is assigned as error and is the principal objection to the verdict raised on questions of procedure.Consideration of other errors assigned require an understanding of the facts of the case.

According to the evidence, C. Ed Lukens, a resident of Randolph County, the owner of valuable properties in said county and in the State of Montana, appeared in the office of H. G. Muntzing, an attorney at law, in Moorefield, West Virginia, on the morning of August 5, 1936, and requested Muntzing to prepare his, Lukens' will.He gave the attorney directions for the disposition of his property, and the alleged will was dictated by the attorney to a stenographer in shorthand and by her transcribed.While the will was being dictated and transcribed, Lukens met Albert R. Leatherman on the streets of Moorefield, and requested Leatherman to accompany him to the attorney's office, which he did.Lukens then read the paper prepared by the attorney, approved the same, and it was signed by him in the presence of Muntzing and Leatherman, who, at the request of Lukens, signed their names as subscribing witnesses.Muntzing then placed the executed paper in a large envelope on which his name and address appeared, placed the endorsement "Last will and testament of C. Ed Lukens" thereon, and handed the envelope containing the executed paper to Lukens.A carbon copy of this paper was retained by Muntzing and placed in his files.These facts are established by the testimony of H. G. Muntzing and Albert R. Leatherman and the stenographer, Carrie Muntzing, a sister of the attorney.Within a few days thereafter, Lukens made a trip to Montana, and returned to this state on or about the 20th day of August, 1936.On that day he visited John Kerens, a tenant on one of his farms near Beverly, and also visited another farm located near Huttonsville.He told Kerens on that day that he was going to stop "down town"(Elkins) to see Earl Maxwell"on a little business."Maxwell was at that time his attorney in Randolph County, and it is admitted that he saw him that day.The same day or the next he went to his home near Harmon.On Sunday, August 23, 1936, he became ill and was confined to his bed.He remained at his home until the morning of August 27, 1936, when he was taken to a hospital in Harrisonburg, Virginia, where he died on the night of August 28th.

After the beginning of his last illness, and while he was at his home, certain events and circumstances occurred, and statements made, which, it is contended, have a bearing on this controversy.These will be stated.Leona Cook, a niece of Lukens, states that during this time, and while he was in bed, he called for his pen, and when asked what he wanted with it, said "He wanted to write his will."He was handed the pen, and he made some effort toward writing.He did no writing and there is no evidence that he was furnished paper on which he could have written.This statement is supported by the testimony of Charles Judy one of the executors under the alleged will of August 5, 1936, but Judy expresses some doubt as to whether Lukens was mentally capable of understanding his acts at this time.Grace Smith says that she visited Lukens during this time, and that a Mr. Underwood said to him "Ed, if you don't go to the hospital and get something done for you,...